The Difficulties Of A Virtual Trial

Due to the rise in the positivity rate during Covid-19 the NY Courts have announced that all trials not already commenced will be done virtually. This includes trials with and without a jury, civil and criminal. This blog discusses in a very general way some of the immediately apparent difficulties of such a trial. Whether the case is about divorce, custody, child support or an order of protection these observations equally apply.

The first and most obvious affect of this move to remote trials is that the judge, clerk, stenographer, attorneys and clients are not all sitting in one large courtroom during which eye contact is made, non-verbal communication takes place, visual reactions to testimony or evidence is readily apparent. Does the judge look bored with a line of questioning, does the other attorney look sheepish as your attorney scores points, is one person staring at the ceiling totally disinterested, is another person wiping tears from their eyes? All of these visual cues are important to assess how your case is being presented and how it is being received. While the Courts are now using Microsoft Teams, usually only the person who is speaking is in the center of the screen and the others are just thumbnails or perhaps everyone is seen as a thumbnail and nobody is seen as a large image. Either way it is more difficult to see and hear every response as the trial proceeds of the other people in the courtroom.

Presentation of documents and their admission into evidence requires more pre-planning and may provide opposing counsel in advance the list of documents that you intent to rely upon during the trial. While the "smoking gun" can always be held back, when it comes time to admit the document into evidence, everything will grind to a slow halt as the document must be uploaded to all attorneys, reviewed by each, then shown to the judge if there are objections, marked by the court reporter and so the process will move at a snail's pace.

Often during a trial I need to privately ask my client a question or to tell the client something. It is difficult to do that if there is an open microphone. By the time I call the client on his cellphone it is usually too late; for example, if I wanted to tell a client not to laugh or not to appear angry, etc.

It is also harder for me to observe the demeanor of the other side during the trial. The other person's visual reactions to testimony is also very important as I can see what questions make the person uncomfortable.

So like most trial attorneys, we all can't wait to proceeding in real time in the courtroom.