By Ryan Davis

Law360 (March 8, 2021, 9:34 PM EST) -- Chris Wanger of Manatt Phelps & Phillips LLP was preparing Ironburg Inventions Ltd. for its patent infringement trial against gaming company Valve Corp. last March when the coronavirus pandemic shut the country down. After months in a holding pattern, a federal judge in the Western District of Washington ordered the jury trial to be conducted by Zoom in January.

That meant "we had to scramble" to prepare for an entirely new type of trial, Wanger told Law360.

In the wake of a national emergency declaration nearly one year ago, many state and federal courts decided that trials must be held in-person and either postponed them or pressed ahead with safety precautions. But some, including the court in Wanger's case, have experimented with conducting the whole trial experience, from jury selection to deliberations, via videoconference.

This new breed of proceedings creates a road map for virtual trials going forward, and courts and litigants may have reasons to want to hold trials remotely even after courts open back up, some experts told Law360.

And with preparation, remote trials can end up being largely similar to those conducted in person, according to Wanger.

"I never felt that I would have been better off being in an actual courtroom than doing it virtually," he said. "I was pretty satisfied that it's an effective way to try a case."

The Virtual Trial's 'Convenience Factor'  

Conducting the trial between Ironburg and Valve from his firm's Los Angeles office meant that Wanger had computers, documents and the trial support team at his fingertips, rather than having to make sure everything was shipped and in place for an in-person trial in Seattle.

"There is a convenience factor to being in your own office in a setting that is comfortable to you," Wanger said. "From that perspective, it was an easier experience than having to schlep down to the courthouse."

Still, preparing for an entirely new type of trial "certainly requires a lot of extra work," he said, describing a lengthy process of finding the best lighting, microphone and camera setups to present the case. For instance, an initial plan to have two attorneys sitting side-by-side in the shot was scrapped when they realized they looked too small on camera.

Wanger said the attorneys were also concerned about jurors falling asleep or getting distracted, "but our experience was very positive."

"In many ways, you can connect more with the jury over this platform," he said. "You are seeing the jurors in the environment of their homes, which is obviously a very personal setting."

Jurors watching the weeklong proceeding on Zoom from their homes around the Seattle area ended up siding with Ironburg in a $4 million verdict in early February.

"I think the more of these virtual trials that happen, the more people will understand the benefits and get over the fear of the parade of horribles that could happen," Wanger said.

One of the jurors in the patent case told Law360 that, having served on an in-person jury in the past, doing it on Zoom "was in almost all respects better," saying it was easier to see the documents, exhibits and witnesses on the screen than it would have been in person.

Lessons From a Zoom Trial 'Guinea Pig'  

The first Zoom trial in the country took place last summer in an asbestos case in Alameda County Superior Court in California. It was a lengthy affair that ran from late July to early September and had its share of challenges, since "we were the guinea pig and the test case," David Ongaro of Ongaro PC, who represented the defendant, told Law360.

"It [was] trial and error," he said. "Nobody had done it before, at least when we had done it, so it was a bit of groping around in the dark."

One way the attorneys found they had to adapt was that "in the courtroom, you can be a little more dramatic than on Zoom," Ongaro said.

"Everyone's used to using Zoom for meetings, so it would seem to be odd to get all emotional over a Zoom," he noted.

Getting ready for a remote trial also involved spending a substantial amount of time working with witnesses to ensure they weren't doing things like talking with their hands, which the team found was much more distracting on camera than in real life, and perfecting lighting and camera angles in their own home, he said.

"We were just trying to make sure that it wasn't a shadow speaking, and the jury could see their face and make evaluations of their credibility," he said.

The trial team was concerned about the jury getting distracted and doing other things on the computer during the trial, Ongaro said. Judge Jo-Lynne Lee's solution was to send all the jurors a computer that had nothing but Zoom on it and instruct them to use that to watch the trial.

"Our experience was that the jurors were, for the most part, very attentive," he said, apart from occasional technical hiccups. For instance, jurors occasionally lost their connection and missed some testimony, so the trial would have to be paused until they reconnected and the court reporter could read back what they missed.

"It was nothing I thought was awful, but there were delays due to technical issues," Ongaro said.

He also noted that because the trial stretched on for weeks, each day was scheduled to end by early afternoon.

"I think it would have been much harder to do from 9 to 5, staring at a screen all day," Ongaro said.

Ongaro said he isn't convinced that observing jurors over Zoom is an effective substitute for looking over at the jury box, saying it could be difficult to pick up on individual mannerisms or responses, like nodding in agreement.

"It's much more difficult for the lawyers to build any rapport with the jurors in the process, because they're looking at you like the Brady Bunch on a little screen," he said.

Will Zoom Trials Outlast the Pandemic?

Litigation consultant Karen Lisko of Perkins Coie LLP has been studying virtual trials around the U.S. over the past year and found that jurors, courts and attorneys have for the most part responded favorably to the new format.

"I've been talking with a lot of people across the country about this, and the ones who tend to say remote jury trials cannot work are the ones who haven't tried it," she told Law360. "The ones who have tried it have seen that it does work."

Lisko reported hearing many positive reactions from those who have served on virtual juries, including a project she worked on where the same mock trial was conducted twice, once in person and once online.

"One of the biggest things we found was that the remote jurors said they actually preferred being remote, and that they could be more candid, especially during jury selection," she said. "Because they were in their own home, it wasn't as intimidating as a courtroom."

Jurors also reported that they appreciated being able to read the facial expressions of lawyers and witnesses on the computer screen, rather than across a large courtroom, Lisko said.

"It is literally a more up-close and personal vantage point for a juror in a remote setting," she said.

Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts, has also heard positive reviews from participants in virtual trials. She said the resistance among some attorneys to the idea appears to have a cultural aspect, since it necessarily requires modifying their personal styles and approaches.

"There are some lawyers who have spent their entire careers perfecting their technique for in-court theater," she told Law360. "They want to be in-person because that's the stage that they feel most comfortable in."

But if remote trials become more widespread and attorneys learn to find ways to advocate effectively in the medium, they might start to wonder, "Why should I put myself and the parties and everyone else to the costs and trouble of having to do all this traveling?" Hannaford-Agor said.

Now that it has become clear that virtual trials can work, the question is whether any courts will continue using them once the pandemic subsides.

Ongaro isn't convinced, saying that while virtual trials are certainly easier for jurors and some courts may want them to continue all the time, they aren't a full substitute for in-person proceedings.

"I think jurors probably get a better feel for witnesses in the case if they're sitting in the courtroom than they do over Zoom," he said. "It seems to me like it should be more of a stopgap, pandemic-only situation."

Wanger said that it will be up to courts and parties in individual cases to weigh what medium makes sense even when it's safe to meet in person again, but he thinks there could be incentive to continue with virtual trials, especially when parties and witnesses are spread around the country.

"I could certainly see this as an acceptable solution going forward," he said.

--Editing by Alanna Weissman and Emily Kokoll.

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