San Francisco, CA commercial litigation attorney Edward Hugo discusses his experience with virtual trials. He shares that he was the first to pick the first and third virtual juries in California and now has more experience in virtual trials than any other defense attorney he knows. Virtual trials represent an entirely new frontier; court rules and the Constitution contain no provisions governing virtual trials or jury conduct, leaving the process vulnerable to abuse. Based on lessons learned from the first trial, he filed a motion to videotape the third virtual trial he participated in.

He recounts an example from that third case: the plaintiff’s first witness, an expert epidemiologist, was testifying about whether the plaintiff received a significant dose of asbestos from talcum powder. The witness referred to hypothetical scenarios and appeared to consult materials during testimony. Objections arose immediately, highlighting the need for strict protocols. In a virtual trial, the witness cannot access notes, computers, or other communications without court permission, and the camera must capture not only the witness’s face but also their hands, desk, and surroundings to ensure transparency.

The biggest takeaway from virtual trials, he emphasizes, is to expect the unexpected. Because participants are outside the attorney’s physical presence, they are exposed to unseen distractions, and the attorney must anticipate potential issues. Motions must preclude witnesses from accessing materials during examination, and videotaping the proceedings is essential to preserve a complete record. Control is critical in cross-examination: in a physical courtroom, the attorney can direct where the witness looks and how jurors perceive them. In a virtual setting, control is limited to the screen, so careful planning is required to manage the witness’s setup, camera angle, visibility of hands, desk, and materials.

He notes that while full virtual trials may not be permanent, virtual testimony will continue to play a role. Courts are likely to allow more witnesses to testify virtually in the future, making the lessons learned from these early trials essential for managing portions of trials moving forward.