I picked the first and third virtual

juries in California and now have more

experience than any other defense

attorney I know in Virtual trials this

is something never envisioned by our

forefathers it’s a completely new

frontier court rules in the Constitution

contain no Provisions regarding virtual

trials or virtual jury conduct

so they are subject to abuse

I made a motion to videotape the third

virtual trial that I was involved in

based on Lessons Learned From the first

let me give you an example from the

third case what you’re going to see is

the plaintiff’s first witness who’s an

expert epidemiologist

opine about whether or not the plaintiff

received a significant dose of asbestos

exposure from talcum powder this is his

testimony yes my understanding is that

the uh talking about it did contain

asbestos of some of it and others will

testify about that but that’s my

understanding uh based in part of

reading in the literature I’m not expert

on it but nevertheless my opinions are

based on that understanding so that

would mean that he would have inhaled

intermittently asbestos

from his birth 66 and I think you said

up to 19 I’m taking little pieces excuse

me I have an objection now it seems like

the witness is reading something

he looked down does he have notes or

something in front of him he’s looking

again

well I I was sent this hypothetical

you’re on it to check it out

okay I don’t have anything in front of

him he shouldn’t be reading anything

whatsoever

your honor I’m sorry an expert is

allowed to have his file with him in

order to review your honor

he’s not allowed to look at anything

without permission at the court

anything at all

I think the protocol was to not have any

documents so why don’t we proceed that

way for the next

um

six minutes

the biggest takeaway from virtual trials

is to expect the unexpected because

people are out of your physical presence

they are exposed to things that you

can’t see and you can’t even anticipate

so first there has to be a series of

motions that precludes Witnesses from

having access to any means of

communication during their examination

computers phones notes Etc the screen

needs to include not just a talking head

but what’s in the witness’s presence his

or her hands the desk you have to be

able to see what they’re looking at what

they’re writing and how they’re acting

in addition to just hearing the words

that they say

if you haven’t conducted a virtual trial

before you need to start with the

mistrial motions that were made in the

virtual trials that occurred in the past

the number of Errors the number of

things that were unexpected have largely

been documented in motions for mistrial

in addition you need to make a motion to

videotape everything that occurs in the

trial with the exception of any

Communications or the physical presence

of the jurors without videotaping

there’s no way to have a complete record

of what happens

control is the key to cross-examination

in a courtroom you can control who the

witness is looking at what they’re

looking at and how the jurors perceive

the witness by your own Motion in a

virtual trial you can’t do that because

all you’re talking to is a little screen

so you have to plan for that instead of

letting your opponent set up his witness

in the way he wants to or she wants to

you have to have input into where the

witness is

how the screenshot is depicted whether

you can see the person’s hands their

desk their movement and any materials

that they’re looking at are using

virtual trials in their entirety are not

here to stay but virtual portions of

Trials are here to stay as we continue

to try cases courts will be more liberal

in allowing witnesses to testify

virtually and not as rigorous enforcing

witnesses to come live to trial so even

if the lessons learned from complete

virtual trials won’t apply to complete

trials they will apply to portions of

Trials moving forward