Are you crazy? That is what I asked my client when he asked me to conduct a jury trial remotely. At the time, I did not even know if it was feasible. While I figured that most courtrooms had remote capabilities, I was not sure whether anyone was crazy enough to do a jury trial remotely and whether a courtroom would accommodate it. Would I be able to truly connect with the jurors? Would the jurors hold it against me that I am appearing remotely while they have to be there in person? I told my client that this was a terrible idea but that I would at least see if it was an option.
At the Final Status Conference, the Court confirmed that it could accommodate a remote appearance for both the party and the party’s counsel and gave its permission to do so. It was also clear that I would be the only attorney exercising this option, and the judge remarked that this would be a first for him. Appearing remotely while other attorneys appear in person is not something I would normally consider. However, this case presented a unique set of circumstances.
My client was neither the plaintiff nor the defendant in the case. He was merely the cross-defendant in a dispute between the buyer and seller of an auto body shop. After being sued for breach of contract by the buyer, the seller filed a Cross-Complaint against my client, the broker. The main fight was between the buyer and seller, and the seller alleged that my client tricked him into signing an unfavorable contract and that he was in cahoots with the buyer. None of this was true, and the facts were firmly in our favor. My client and I had a lengthy discussion, and after weighing the pros and cons, we decided to go for it.
We started with jury selection, and before the prospective jurors entered the courtroom, the clerk advised me that there were only two cameras and that one would show the judge while the other would show counsel’s table. This meant that while the jurors could see me, I would not be able to see the jurors during voir dire. I responded by saying that it was fine because what else could I do?
Once we decided to appear remotely, I resolved to never complain about any deficiencies with being remote because this was my choice. I certainly did not want to complain in the presence of the jury who had to be there. Luckily, just before the prospective jurors entered, the clerk was able to maneuver the camera to show the jury box instead of the attorneys. I voiced my gratitude to the clerk and thanked the judge for accommodating me.
Still, the challenges of being remote were very real. First, I had difficulty seeing everyone, and during voir dire, I could only see the badge number of some of the jurors in the front row. However, only one juror caught my attention because his circumstances were very similar to the seller and likely to be sympathetic to him, and I had a clear view of that juror’s badge number. When it was my turn, I thanked and excused that juror and felt good about the rest of the panel.
Second, the sound quality, especially at counsel’s table, was very poor. While there was a microphone right next to the judge and another next to the witness, the microphone at counsel’s table did not work very well. I had difficulty hearing what counsel was saying, even with my computer volume at 100. I had to listen intently to decipher what was being said.
At the same time, I came to appreciate the convenience of conducting a trial remotely. I was comfortable in my own office with multiple screens so that I could have my outline and exhibits ready to go while conducting cross-examinations. I was able to simply share one of my screens to show the exhibit to the witness and to the rest of the courtroom while viewing the video and outline on another screen. It also occurred to me that there are only two tables in the courtroom to choose from, and I would have had to sit with the buyer, the very party the seller claimed my client was in cahoots with. Instead, I was able to distance myself and my client from both parties by being remote.
On the second day of testimony, the two witnesses expected to testify, the seller and my client, both chose to appear remotely. The two witnesses experienced the same issues I faced the day before and had difficulty hearing what counsel in the courtroom was saying. As a result, it worked to my advantage that I was appearing remotely because the sound quality of the witnesses appearing remotely were perfectly fine for me, and the witnesses had no issues hearing me as well.
Once the parties rested their case and the jurors were excused for the day, I moved for a directed verdict. The case went very well for my client and not so well for the seller, who was unable to present any credible evidence at trial. I immediately requested a directed verdict, which the Court granted. I could not believe it. Our gamble paid off! Perhaps we were not so crazy after all.
I joked with a colleague that I may have been the first attorney to prevail in a jury trial while appearing remotely because there probably is not another attorney out there dumb enough to try this, and the colleague laughed and graciously added, “And smart enough to prevail.”