More Takeaways From My Experience With Virtual Trials

March 2021 | by Pete Viteznik

My latest trial was conducted exclusively online in Clackamas County Circuit Court via the Court's WebEx and left me considering where our trial system may be headed. It certainly left me with a list of what I would repeat, and a long list of how I would prepare for a virtual trial differently next time.

From a technology standpoint, I believe virtual trials will continue to improve just as so many industries have upped their tech game over the last 12 months. Nevertheless, during the trial, all parties and the Court experienced many dropped Wi-Fi connections, poor video feeds, and audio issues.

Here is a shortlist of "Lessons Learned" from the experience:

• Exhibits are very hard to review virtually, especially when you have no control of the screen size or quality. Further, the WebEx program is not like Zoom and it is hard to see the witness if you share an Exhibit on WebEx. So, be prepared to have exhibits viewed on the virtual platform and also go old-school and mail out prepared binders to all participants. I found that participants' comfort level with scrolling through long pdfs varied. The trial moved along so much faster when counsel used exhibits in the binder.
• Handling the last-minute, day of trial "new" exhibits that invariably were produced late (including expert files) presents unique challenges in a remote video trial. For example, I received a dropbox with over 200 photos from an expert's file about 2 hours before that expert testified. I soon realized that I needed to print out the photos, and in this case, I needed a color printer, to be prepared for trial. Relying on reviewing the photos onscreen made it very difficult to cross-examine the expert.
• Audio and lighting are two areas I intend to upgrade before my next trial. Relying on my laptop microphone caused any typing I was doing to be heard by everyone during the trial; and WebEx would often mistake me for the speaker and would jump between my typing and the actual speaker, making for a very disjointed presentation. An external microphone will eliminate this problem. And lighting seems to be the biggest fail for all virtual videos. Here an inexpensive ring light would solve that. I found that I need to pay closer attention to my background as well. Being more thoughtful about what appears onscreen should not be overlooked. It is worth noting that recent research suggests virtual backgrounds are not the way to go. They are often distracting or leads the viewer to wonder what you are hiding.
• Lastly, I found that this particular trial took twice as long to conclude vs. our estimation for an in-person trial. A few reasons for this were the technology fails, mainly Wi-Fi issues, and it also seemed that the arguments of counsel were more longwinded than normal, which in the end, is not in anyone's interest as a longer trial means more expense for the clients.