We are recovering from a near-trial experience. It settled at the beginning of jury selection, and with that settlement came the usual mixture of relief and letdown. Colleagues congratulate you on the resolution, and you’re not sure what to say. It was certainly a good settlement for the client. But our team had worked up a hearty contempt for the plaintiff lawyer’s arguments and the plaintiff experts’ prevarications, and we were looking forward to setting some traps. In any event, we’re past that emotional stew now, and have turned to reflection.
The case was in California state court and was a “preference” matter. That means that the plaintiff submitted a doctor’s affidavit that she could die fairly soon and, therefore, needed a trial date much earlier than would ordinarily be assigned. We can see the fairness of the preference category. People should get their day in court. Nevertheless, there is a problem. You would expect the preference schedule to result in a compression of discovery and briefing, but it gets much worse than that. In our case, the plaintiff lawyer filled the back-end of the schedule with new theories of exposure, new evidence of alleged product defects, and new varieties of injuries. It was sandbagging at its worst. The judge understood the plaintiff lawyer’s manipulations and didn’t like them one bit. He recognized that the plaintiff lawyer’s eleventh hour somersaults created unfairness and meant that the case was not truly trial ready by the preference date, but what could he do? He did his best.
But today’s post is not meant to be a screed against the California preference system. Rather, we are going to share some ruminations on Zoom litigation. As the late, great Aretha Franklin asked,”Who’s Zoomin’ Who?” The answer is darned near everybody, including courts in jurisdictions concerned about its Covid numbers. This trial was going to be conducted on Zoom. It had already been a throughly-Zoomed litigation. Meetings, depositions, and hearings had all taken place via Zoom. We tied our half-Windsor knot at 11:50 am each day, fired up the computer in our home office 3,000 miles away from the courthouse, and logged into morning (Pacific time) festivities.
What are our impressions of Zoom law? As Larry David would say, “pretty, pretty, good.” Of course, we did not stick around for trial, so we cannot offer observations on that. One of our partners was a defense lawyer in what might have been the very first Zoom trial. He won. So you’d think he’d adore Zoom trials. Not so. He thinks Zoom trials amount to deprivations of due process. There will always be technical issues afflicting lawyers, witnesses, or jurors, adding up to delays and confusion. Moreover, juror inattention is unavoidable. That is true for in-person trials as well, but folks now are too prone to view a monitor as something that accompanies, not supplants, the rest of life’s entertainments.
We got a whiff of this problem during juror hardship hearings. We saw jurors driving. We saw jurors wandering around their houses. Some seemed distracted by something else. We bet a couple of them were watching Below Deck or Impractical Jokers on another screen. One way the court employed to combat Zoom fatigue was to limit the trial day to 9-1:30, four days per week. That meant, of course, that the length of trial would inevitably increase significantly. Consequently, more jurors claimed hardship exclusions. If that tilted the jury pool at all, it was probably not good for the defense. Then again, some jurors begged off because they lacked either the requisite technology or tech knowledge. The court would permit jurors to come to the courthouse if they needed help. All jurors would be loaned chrome books, scrubbed clean of anything that might distract.
It is by no means self-evident that juror distraction would hurt the defense more than the plaintiff. It occurred to us that the literal remoteness of the trial might drain some of the emotion out of the case. Family and friends would not be visible except when they testified. But for us, whether Zooming ends up being a net plus or minus for the defense resides in the realm of mere speculation.
We do not need to speculate about depositions. In our estimate, Zoom depositions are at least 70% as good as in-person depositions. The absence of physical proximity turns out not to be such a big deal. Rarely do we intimidate anyone anyway.
That being said, we are not very satisfied with the deployment of document exhibits in a Zoom deposition. It is inherently a clunky process. It is a pain if you are the interrogator, but it is much worse when you are defending. The questioner does the usual pointing to a particular sentence in a document. You probably did a good job of training your witness to flip through the entire document and see whether the witness wrote it or received it, whether the document was a draft, whether the document was complete, whether it was acted upon, or whether there is something else in the document supplies crucial context. But flipping through a document on screen is a hard slog. We typically seek either advance notice of documents or provision of hard copies. The other side typically resists. The oft-cited concern is the elimination of surprise. One solution is to send the witness a sealed box, with instructions not to open until directed to do so during the deposition. But that does not do much to help the defending attorney (assuming he or she is in a different location than the witness).
For these and other reasons, we are inclined to try to attend in person for particularly important depositions. For example, prescriber depositions might push us to board a plane. Think back on our feeling that Zoom depositions are 70% as good. Maybe we can do 70% of our depositions remotely, but insist on doing 30% in person. That is assuming that Covid-19 really is releasing its hold on us.
Zoom hearings were mostly just fine. Occasionally people spoke over one another. Or some dunce (including the author of this post) would blather on without realizing the mute button was lit. We recently attended one hearing – not for the California trial – in which an apparent hiccup in the technology fooled a lawyer into inadvertently interrupting the judge. The judge grew inordinately angry and threatened to revoke the lawyer’s pro hac admission. It was a plaintiff lawyer who prompted the judicial ire, so we sat at home in our blazer, tie, and shorts, brimming with schadenfreude. And yet, it could have been us. In fact, once it was us. In a particularly important Zoom motion hearing, we hit the red “leave meeting” button prematurely. The court recessed to afford time for us to get a clue and get back onto the Zoom hearing. Our blush was completely visible even in gallery view.
The issue of appearance on the Zoom screen is not trivial. You want your face to be in the center of the screen, and not be scarily huge or pin-sized. The plaintiff lawyer in our case used separate Zoom setups for hearings vs actual trial. For hearings, he was in his office, looking at the camera at an odd angle. His head would be way over on the left side of the screen. Good. It seemed to be a visual reflection of the fact that his arguments were one-sided and off the mark. Once a jury was involved, the plaintiff lawyer was well centered in front of a white board. We imagined he would make splendid use of that white board, but the stark contrast of his head against it when it was not in use reminded us of a mugshot. Again, good. Another plaintiff lawyer had the camera way down low, looking up at him against a black background. He looked like the Prince of Darkness. It was beautiful. But someone must have talked with him, because the Lucifer look was rectified just as voir dire commenced.
You need to be well lit on Zoom. That means you must be lit from the front, not the back. Buy a halo light (or two), clip it onto the monitor or position it on a tripod over or alongside the monitor, and start looking more like an authoritative Sunday morning TV talking head and less like a member of the federal witness protection program.
Those TV talking heads are usually very careful about their backgrounds. Too many offer cheesy advertisements of their books, positioned cover frontside on their shelves in a way that no one would do if they were normal. We resisted the impulse to fill our back wall with DDL posts or our lawyer softball league participation plaque. Let’s get real: the best background is no background. Our trial graphics consultant took a look at the background in our home office and suggested massive decluttering. Goodbye, Phillies pennant. Goodbye, oddly positioned red milk crate overflowing with printer cartridges. Hello, blandness. You do not want to communicate anything distracting or potentially off-putting. (The consultant also advised us not to drink from Poland Spring water bottles, as some jurors would consider us wasteful. Yikes.) The best Zoom background, and the one used by many of our codefense lawyers, was the blurred effect. For whatever reason, our MacBook did not offer that option.
And then there is the etiquette question of when one can go off the video. Out of sight is out of mind. Maybe you want a low profile. Or is it disrespectful? Clearly, we need an Emily Post book with rules regarding Zooming in various settings.
We are hardly suited to author such a rule book. All we can do is endorse Zoom as a decent tool for most aspects of litigation. In a year when cutting back on travel was mandatory, Zoom was vital. Further, pandemic or no, Zoom simply has to be considered as a way of reducing inconvenience and expense. Will reduced expense lead to more efficient litigation? Or will it actually promote proliferation of litigation? Will more plaintiff lawyers notice and attend Zoom depositions to run up the ridiculous “common benefit” bill? Who’s Zoomin’ who, indeed.