I picked the first and third virtual
juries in California and now have more
experience than any other defense
attorney I know in Virtual trials this
is something never envisioned by our
forefathers it’s a completely new
frontier court rules in the Constitution
contain no Provisions regarding virtual
trials or virtual jury conduct
so they are subject to abuse
I made a motion to videotape the third
virtual trial that I was involved in
based on Lessons Learned From the first
let me give you an example from the
third case what you’re going to see is
the plaintiff’s first witness who’s an
opine about whether or not the plaintiff
received a significant dose of asbestos
exposure from talcum powder this is his
testimony yes my understanding is that
the uh talking about it did contain
asbestos of some of it and others will
testify about that but that’s my
understanding uh based in part of
reading in the literature I’m not expert
on it but nevertheless my opinions are
based on that understanding so that
would mean that he would have inhaled
from his birth 66 and I think you said
up to 19 I’m taking little pieces excuse
me I have an objection now it seems like
the witness is reading something
he looked down does he have notes or
something in front of him he’s looking
well I I was sent this hypothetical
you’re on it to check it out
okay I don’t have anything in front of
him he shouldn’t be reading anything
your honor I’m sorry an expert is
allowed to have his file with him in
order to review your honor
he’s not allowed to look at anything
without permission at the court
I think the protocol was to not have any
documents so why don’t we proceed that
the biggest takeaway from virtual trials
is to expect the unexpected because
people are out of your physical presence
they are exposed to things that you
can’t see and you can’t even anticipate
so first there has to be a series of
motions that precludes Witnesses from
having access to any means of
communication during their examination
computers phones notes Etc the screen
needs to include not just a talking head
but what’s in the witness’s presence his
or her hands the desk you have to be
able to see what they’re looking at what
they’re writing and how they’re acting
in addition to just hearing the words
if you haven’t conducted a virtual trial
before you need to start with the
mistrial motions that were made in the
virtual trials that occurred in the past
the number of Errors the number of
things that were unexpected have largely
been documented in motions for mistrial
in addition you need to make a motion to
videotape everything that occurs in the
trial with the exception of any
Communications or the physical presence
of the jurors without videotaping
there’s no way to have a complete record
control is the key to cross-examination
in a courtroom you can control who the
witness is looking at what they’re
looking at and how the jurors perceive
the witness by your own Motion in a
virtual trial you can’t do that because
all you’re talking to is a little screen
so you have to plan for that instead of
letting your opponent set up his witness
in the way he wants to or she wants to
you have to have input into where the
how the screenshot is depicted whether
you can see the person’s hands their
desk their movement and any materials
that they’re looking at are using
virtual trials in their entirety are not
here to stay but virtual portions of
Trials are here to stay as we continue
to try cases courts will be more liberal
in allowing witnesses to testify
virtually and not as rigorous enforcing
witnesses to come live to trial so even
if the lessons learned from complete
virtual trials won’t apply to complete
trials they will apply to portions of
