In-person trial gone remote: benefits and lessons learned

Hard to believe it is November and our fully remote jury trial is still ongoing. We have experienced all the phases of COVID-19 through this trial. When the pre-trial hearings of the Stephens v. Monsanto case began at the end of July, there wasn't even a mask mandate. Three weeks later, eight people in Department 24 of the San Bernardino courthouse tested positive for COVID. Five were defense attorneys, two court staff and one juror. After considering what options were available short of a mistrial, a decision was made to go fully remote. That meant securing laptop computers for our 15 jurors. (For more background on the trial, see my recent series of Daily Journal columns on our "in-person trial gone remote," documenting our experience preparing for an in-person trial in a San Bernardino County courthouse before Judge Gilbert Ochoa.)

Since September, the entire trial has been conducted using Zoom. The best use of the remote trial has been the ability to schedule the appearances of witnesses around the country based on their availability. In the past, the typical process of having witnesses travel to the courthouse in hopes that you would get to them was both inefficient and expensive. The ability to avoid the drive from Los Angeles to San Bernardino recaptured at least three hours each day, not to mention the reduction in stress associated with zero commute.

Another hidden benefit was the flexibility we had with our jurors and the trial itself. There were several days where circumstances resulted in having only a morning or afternoon session. For jurors attending from home, there was no inconvenience for them to have a shorter day since they did not need to drive to the court.

A continuing benefit of the remote trial is the simplicity with which we are able to conduct side-bar hearings. Some courthouses, like the federal court in downtown Los Angeles or the complex court at the Spring Street location, have white noise played through the speakers so jurors cannot hear what's going on with the side bar. In other courts, like Torrance, Glendale and Dept. 24 of San Bernardino, the side bar actually happens in the hallway behind the court. In order to have a side bar, counsel needs to get up from counsel table, march up to the court, wait for the court reporter to arrive, and then engage in the hearing. At best this process logistically takes about three to five minutes. Many judges do not let counsel engage in side bar hearings, absent exceptional circumstances, simply because of the delays associated with the process. With the remote trial, it is a matter of less than 30 seconds to go from the request to the "breakout room" enabled for side bar hearings. The court, the reporter, and all counsel are just a click away from engaging in a side bar.

Now that we are two months into our remote trial, it's time to look back at some of the challenges this new process brings. First is the reliability of everyone's internet connection. Since the trial is being conducted remotely it depends upon all of the participants -- the judge, the jury, the witnesses, the court reporter, and all counsel -- to have stable, reliable and consistent bandwidth to participate. There have been many days that one or more of these stakeholders had a glitch with their internet connection. When jurors have this problem it means stopping the trial, reconnecting the juror, and then figuring out at which point the juror lost connectivity. The court clerk, Robert Kretzmeier, developed a protocol so when a juror was disconnected they would immediately note the time of their disconnect and call the court to let Kretzmeier know they'd been disconnected. In the meantime, the trial would pause, the juror would be reconnected, and the court reporter would need to read to the absent juror the testimony that was missed. On one particular day we heard the reporter read the same text four times while trying to reconnect the missing juror. I personally didn't love the testimony that was being read and had to endure it being repeated four times. I cringe thinking about that day.

The problem was not just limited to our jurors' home internet, but even the court's. Our amazing court reporter will actually use her personal hotspot at the courthouse to provide a more stable connection. So far we have only had one physical failure of one of the laptops -- a simple matter of having a messenger swap out a broken laptop with a new one.

A few notes of caution. There was one shocking moment, thankfully at sidebar, where one of the attorneys thought their computer was on mute when actually it was not. The attorney made a snarky remark about a witness who had just testified, and the remark was heard by everyone. The court, counsel, and the court reporter who was dutifully transcribing everything that was said, all heard and recorded the comment. So word to the wise: Make sure you are muted before you say anything that you do not want to be on the record.

As we are just about to rest plaintiff's case in chief and the defense is about to put on its case, we have begun to consider what closing arguments and deliberations are going to look like. Counsel and the court agree that closing, given the substantial reduction in COVID numbers, can be done in person. Last week, the court advised all of the jurors that we intend on bringing them back to the court for closing arguments and they will be deliberating in person with appropriate safety protocols in place when the case is ready.

So here we are, about two to three weeks from closing, and so far, so good. The proof will be in speaking directly with the jurors and learning firsthand what this experience has been like for them. Until then. 