I recently served as trailblazer for the Delaware patent bar handling one of the two first “hybrid” patent trials conducted in the U.S. District Court for the District of Delaware since the Covid-19 pandemic hit.
Throughout the three-day trial, I picked up a number of insights about adapting to the “hybrid” format—where counsel for both parties were live in the courtroom and all witnesses presented over a video conferencing format.
Trials Before Sept.15 Were Postponed
I represented Arthrex Inc. in a patent dispute filed by TriMed Inc. in May 2018. As the mid-September trial date approached, Judge Maryellen Noreika held several status conferences with the parties, starting in late July, to discuss how the parties wanted to proceed with the case in light of the pandemic.
At that time, the Delaware federal court was only in Phase 1 of the reopening, and it seemed clear that the parties were unlikely to be guaranteed a jury trial date in 2020 in light of the uncertainties arising from the pandemic and the growing list of trial dates that had already been postponed. In our case, both parties eventually consented to a bench trial to hold the previously set fall date. Notably, the most recent guidance from the court postponed all civil and criminal jury trials scheduled before Sept. 15—our trial date was Sept. 14.
After studying what her colleagues in Delaware and other courts were doing and receiving input from the parties, Noreika agreed to hold the bench trial in a “hybrid” format—with counsel for both parties in the courtroom and all witnesses on video conferencing.
How the Hybrid Trial Worked
The parties were permitted three counsel and one technical support staff in the courtroom at a time—with no more than two people at counsel table at any time. Everyone in the courthouse was required to wear a mask at all times—even while presenting. Large plastic screens were placed in front of both counsel tables and in front of the judge and court reporter.
Counsel were required to sit during all presentations and were not permitted to provide anything in hard copy to the court. Instead, all trial exhibits were provided in electronic format before trial, and “witness binders” were provided by e-mail to the court each morning.
By the end of the first day, this set-up felt surprisingly “normal,” and did not seem to cause distraction. By the end of the trial, everything about the hybrid approach seemed normal and seemed to work well. It allowed counsel to be in the same room with the judge—to respond to her immediately, but in a way that felt extremely safe.
We had relatively few, if any, technical glitches. Occasionally we had to wait for an exhibit to be presented electronically to a witness or for the witness to identify which portion on the screen they needed enlarged so they could review or discuss the relevant portions.
And there was virtually no ability to create a demonstrative “on the fly” with a witness; everything required more advance preparation to ensure no awkward silences. Only one witness was seen during a break walking away from the screen wearing shorts!
Witness Presentation With Little Eye Contact
There were differences in witness presentation that required adjustment, in particular with both the direct and cross-examination of experts. It was more challenging to develop a rapport with the expert over video. As litigators know, a good expert can take the room over when presented live and teach everyone in the room about the technology at issue. That seemed more challenging by video.
On the other hand, getting the opponent’s expert to answer direct questions on cross-examination was also slightly more challenging, as there was little eye contact or other nonverbal ways to effectively limit non-responsive answers that could run on in unhelpful directions. It became important to tell the witness very quickly that you wanted a yes or no answer, for example.
But these challenges went both ways. As long as all witnesses are remote, whatever differences that one faced with a remote witness—in terms of technical difficulties, credibility impacts, or personal interactions—it seemed to be felt equally on all sides. Presenting a witness over Zoom, which we used, is not the same as presenting a witness truly “live,” but it comes with advantages and disadvantages that both parties face.
In the end, our trial was another example of something that we thought six months ago was not possible—a paperless and largely remote trial. But like other sacrifices and adjustments that we have all made professionally in 2020, it had its advantages and disadvantages.
And while I suspect that this format will be the new normal—at least for the immediate future—this may have been the only opportunity that I will get in my career to watch the Hawai’i sun rise in the background while examining a trial witness.
And for that, and for the Delaware court employees who made it possible safely, I am thankful.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Megan S. Woodworth is partner and co-chair of Venable’s IP Litigation Group.