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The Case Against Virtual Trials

Ed Hugo raises red flags about what’s getting lost in the new normal

Published in 2021 Northern California Super Lawyers magazine

The traditional forms of courtroom communication and persuasion have fallen victim to COVID-19. Control, presence and poise are marginalized by social distancing—whether by masks, physical separation or virtual appearances. Distancing dilutes control, dissolves presence and disrupts poise. And the effect is not equal. The greater one’s traditional courtroom skill, the greater the loss in a virtual trial. Attorneys will need to find alternative means of communication and persuasion to remain effective in the new world order.

Some trial techniques may be lost forever with virtual trials. For example, a greatly overlooked technique to emphasize a point is silence. Silence, used sparingly and appropriately, subliminally encourages your audience to think about the last words they heard. But silence in a virtual trial will invariably be interpreted as equipment failure or lack of preparation. Similarly, the proper use of physical presence in a courtroom—such as standing in proximity to the juror box and employing eye contact with jurors when examining a witness—vanishes when all participants are reduced to boxes on a computer screen. In both examples, traditional trial skills are eviscerated in the virtual court “room.” There is no underestimating the preparation and practice needed to reimagine the skills necessary to be an effective communicator in a virtual space. 

Individual skills are not the only thing a trial lawyer has to manage in this brave new world. Control of the record in virtual trials is a whole new frontier. Like Las Vegas, what happens in a virtual courtroom will stay virtual, unless you find a way to memorialize it. So make a motion to record everything—audio and video. Verify in advance that the court has sufficient staff assigned to the trial to handle such tasks as intaking exhibits, monitoring jurors, monitoring witnesses and managing virtual “breakout rooms” (used for sidebars with the court) all at the same time. Then, have another lawyer from your firm monitor the jurors, witnesses, breakout rooms and exhibits as well. While unintended mishaps make for entertaining fodder, the lack of control presented by virtual trials cannot be overstated. 

When the pandemic is finally over, it will have left its mark on the practice of law. Virtual court appearances will be common, most depositions will be by video, and witnesses will regularly appear remotely in live trials. Now is the time to prepare. 

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