We recently completed a virtual bench trial in the U.S. District Court for the Western District of Pennsylvania that was necessitated by the continuing impact of Covid-19. While the parties quickly agreed with the court to proceed remotely in order to keep the previously scheduled trial date, minimal consideration was given at the time to the procedures that would govern the appearance and conduct of the remote witnesses during the trial.
While no issues arose during our case, the experience revealed certain potential challenges associated with controlling witness conduct and attorney-client interactions in a virtual environment that simply are not present in the actual courtroom. Given the near certainty that virtual trials will continue into 2021, we offer suggestions for establishing procedures to prevent any such issues from occurring.
Remote Testimony Shifts More Control to the Witness
It is universally recognized that the credibility of a trial witness is as important as the weight of the evidence in the record for the jury or judge to evaluate. When a witness appears remotely, the in-person opportunity to evaluate the witness’ demeanor, gestures, and other conduct that may assist the fact finder in making a credibility determination is substantially altered.
This problem is compounded by the fact that, generally, witnesses testifying remotely are free to appear via a laptop, tablet, cell phone, or other device of their choice. This gives witnesses a greater degree of control over what may be viewed by the attorneys, judge and jury than in a typical courtroom setting. This shift in control can have significant implications for the outcome of a trial if not properly managed by counsel and the court.
Virtual trials are more susceptible to improper witness and attorney interaction than typical, in-person trials. For instance, a virtual trial environment hinders counsel’s ability to identify, monitor, and control what notes or other materials are within the reach and/or view of a remote witness, and/or whether a witness is receiving emails, text messages, or other communications from an attorney or a party during an examination that would never occur in an actual courtroom.
A Proposed Protocol for Virtual Trials
Accordingly, counsel preparing for a virtual trial should consider entering into a pretrial order or stipulated protocol for the court’s approval that addresses some or all of the following points:
- The parties should agree that all witnesses appearing remotely will be viewable at a camera angle that allows all counsel and the court to have a reasonable view of the witness’ location and, if practicable, to observe more than just the witness’ face.
- The parties should commit to conducting a pretrial test of the Zoom (or other) platform to ensure that the witnesses will have a sufficient internet connection during the trial, and to minimize any technical issues.
- The pretrial order should require all remote witnesses to certify that they are alone in the location in which they are testifying, or identify all individuals present during an examination.
- Counsel should agree that all witnesses shall not have available for access— and/or review off screen— any documents or other materials beyond the relevant trial exhibits, pleadings and/or transcripts, if applicable.The pretrial order should address a practical share platform for exhibits and/or the preparation of a joint exhibit binder to provide to remote witnesses.
- The parties and/or the court should consider requiring each witness to certify under oath that he or she has not been provided or accessed information (hard copy or electronic) that cannot be observed to assist in providing testimony during an examination.
- Witnesses should certify under oath that they have not received communications during an examination by an attorney or any other interested party via email, text message, or other electronic means. Indeed, to the extent practicable, the parties should agree in a pretrial order that all remote witnesses shall not have active devices such as cell phones, laptops, or smart watches in the room during an examination.
- Consistent with the standard practice of advance disclosure of witness lineups, counsel should also agree to disclose whether they intend to conduct an examination of a witness remotely, or if the attorney will be in the same room with the witness during the examination and thus present during opposing counsel’s cross-examination.
While the remote examination of a trial witness is inherently more challenging in many respects than an in-person examination, a well-crafted pretrial order can be an effective tool in minimizing the issues that can arise in virtual proceedings.
A Bloomberg Law Practical Perspective on this is available here.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Daniel B. McLane is a Pittsburgh-based trial lawyer with Eckert Seamans Cherin & Mellott LLC and has extensive experience representing a wide variety of corporations in complex commercial litigation. He represents clients concerning contract disputes and business torts, product liability, commercial real estate and lease disputes, Pennsylvania Liquor Code distribution rights, corporate governance, business dissolution matters, non-compete agreements, and oil and gas energy litigation.
Michael P. Pest is a Pittsburgh-based attorney with Eckert Seamans Cherin & Mellott LLC and practices in the area of commercial litigation. He represents a wide range of clients in litigation involving financial services, contractual disputes, alleged business torts, real estate transactions, shareholder disputes, and claims under various federal and state consumer protection laws.