Streamline your exhibits and your case for trial. This is always critical and more so under this format.
Mark Osherow: Kristin, what do you think the pros of having a nonjury trial via Zoom were?
Kristin Vivo: Aside from the fact that I got to wear sneakers (which may also be a con because I looked like one of the characters from “Working Girl”), I enjoyed the comradery and collaboration not normally present during a live trial. For example, we could comment as the trial went along, out loud, to each other (being mindful that our microphones were on mute!) rather than attempting to whisper or pass notes as necessary during a live trial. It was also helpful to be able to write questions on a piece of paper and hold them up for you to see if you missed an issue I wanted you to cover something further in your line of questioning.
Mark Osherow: I have to work harder at remembering to mute my microphone. Working with the court reporter was seamless. At times there were some technical difficulties involving audio quality but those were resolved. What else did you enjoy?
Kristin Vivo: I also enjoyed being able to have fellow attorney colleagues observe the trial. This was one of the first Zoom non-jury trials in Miami-Dade County and several of my colleagues were curious about the particularities of e-trial procedures. If this was a live trial, we would never have had five colleagues in person at trial observing. The support was wonderful, and I am grateful for the opportunity to be able to share my passion during a trial with them!
Mark Osherow: I agree. Kristin, can you discuss the objection process throughout trial? Did you have a hard time making your objections heard? What was the significant difference between making objections during a live trial versus a Zoom trial?
Kristin Vivo: I did not have a problem with my objections being heard. It can be a little cumbersome to mute and unmute on a Mac, but I know on PCs you can use the spacebar to easily toggle the mic on and off (even though in all other aspects it is superior to your HP, Mark!). I know your objections were twice as fast using that trick.
Mark Osherow: What can I say, I am a trial tech nerd.
Kristin Vivo: I did not have a hard time making my objections heard. First of all, the court and all attorneys present were very attentive. If any of our lips were moving while we were on mute one of the attorneys present or the judge would stop and ask if the attorney speaking on mute had an objection. I think we also had more time than normal to object because if we did not unmute in time to object we still had to wait for the interpreter to finish before the witness answered. We could object as the interpreter was speaking. I did not find there to be a significant difference between making objections live versus via Zoom.
Mark Osherow: The court handled the objections well, with reasonable flexibility given the format, without a jury. I do think there are going to be additional considerations and issues to work through for jury trials. But most of those should be resolvable. The platform is not perfect (in terms of replicating the human world of interaction) but does offer a lot of flexibility and really enables us as litigators to accomplish our goals. In addition to routine non-evidentiary matters, while Zoom and other platforms of this nature may not be the perfect solution for every trial, there are many matters, including lengthy evidentiary hearings and trials that can—and should—be effectively handled virtually. It was great to work on one of the first full trials on Zoom in Florida, and while we were not necessarily making history, all of us felt we were contributing to bringing the use of virtual platforms beyond being an experiment for conducting extensive evidentiary hearings and multi-day trials in Florida’s courts.