Inside the First Video Trial

this is high dress. Next time you come into my courtroom, you will look loyally and I mean you call me head and wear a suit and tie, and that suit that will be made out of some kind of cloth. You understand me. Well, this month, a federal judge in New York wanted to make sure that lawyers were properly dressed for court and issued a similar instruction in a written order. Judge Robert Draine had decided to go where no other judge has gone before and conduct an entire

trial by video. It took place in US Bankruptcy Court in the Southern District of New York. Well, that's where the judge's courtroom is, but the lawyers and witnesses were elsewhere. Joining me. As intellectual property litigator Terence Ross, a partner Captain Eugen Rosenman. He represented the plaintiff in this case between two competing cable companies. So, Terry, what was an

intellectual property lawyer doing in bankruptcy court? Well, Jim, the bankruptcy court actually has jurisdiction over most controversies that arise involving a company that's in reorganization, even if it's not

a traditional bankruptcy area of law. So in this particular case, there was a charge of false advertising under the Land Act made by my client was in Chapter eleven reorganization, and that complaint was brought in the bankruptcy court as what is known as an adversary proceeding, and once filed, it proceeded in the bankruptcy court as if it were any other false advertising case a federal district court. Was there an urgency about this? Why did a bankruptcy court

decide to become a trailblazer? So one of the fundamental principles in bankruptcy court is you want to move the debt or through the process as quickly as possible and get them back out the other side of bankruptcy and operating as a regular company. This way, creditors get paid quickly, employees are not put out of work and normal operations of the company continue. And so in bankruptcy court there is a premium on speed and efficiency in moving cases

and proceedings from start to finish. And so although there was a slight delay here due to the COVID nineteen pandemic, trial was postponed approximately thirty days. The bankruptcy court did not want an extended postponement of the trial because of this overarching principle that you see in bankruptcy proceedings. Let's move these proceedings through the process as quickly as possible, get the creditors paid, and get the company back out.

On the other side of bankruptcy, judges across the country have been holding not trials, but conferences, motions and the like by video, and there have been reports of everything from barking dogs two lawyers appearing shirtless. Did Judge Drane set out any parameters to make sure that didn't happen in his virtual courtroom? Yes, the judge did, and it was probably one of the most useful things that happened

in the lead up to the video trial. The court issued it long and very carefully fought out trial order, which included a provision stating and reminding the lawyers that they were in a formal courtroom setting, notwithstanding that they were all at distant locations, that the judge himself would be conducting this from the courtroom from his bench, and that he expected the lawyers to comport themselves in a manner consistent with a courtroom appearance, with respect the attire,

and making sure that they were an environment, although distant from the courthouse, that was as close to a courtroom like proceeding as possible, and by that the court essentially meant no barking dogs, no kids interrupting, find yourself a quiet place where you had good WiFi, good connectivity, so that this proceeding could be conducted with all the formalities of any other trial. We're all getting used to zoom now, Was it done by zoom now? Unfortunately it was not.

The parties actually jointly suggested to the court that WebEx be used, in particular because the facility with which you can share documents on the WebEx platform. However, the courts i T employees wanted to use Skype for business, apparently to the licensing reasons the i T department. In both sides law firms were completely unfamiliar Skype for Business when they started looking into it, realized it was a video

platform that Microsoft is actually trying to phase out. It has significant limitations with respect to the number of persons who can participate via video link, and as the number grows up, the platform gets very glitchy. And so this was a real challenge that the court was insisting upon using Skype for business. Coming up next on Bloomberg Law. Why it's hard to get that aha moment when cross

examining a witness a video. It's a cross examination that every movie fan and lawyer remembers Tom Cruise cross examining Jack Nicholson up close and personal and a few good men, Your colonel Jesse, did you order you don't have to answer the question. I'll answer the question you want answers. I think I'm entitled. You want answer the truth. You

can't handle the truth. But would there have been such a gotcha moment if the cross examination had taken place on video with the lawyer and witness in different rooms. I've been talking to intellectual property litigator Terence Ross, who represented the plaintiff in the first video trial in a

federal court. So Terry. Before we get to the cross examinations, what are some of the other technical problems that you faced, so do you One of the core principles of the U S Court system is that the courts are open to the public to observe, so that the public has a right to see what is going on in their courthouses, even if they're not involved in the particular proceeding. And so we had to set up the platform in such a way that any member of the public could at

least listen in. And indeed, there was press interest in this trial and press coverage, and so the limitations on the number of participants that we were faced with using Skype for Business, we had to use an audio platform in addition to Skype for Business, an audio platform commonly used by subtle courts called Court Solutions, that's the vendor's name, And we set it up in such a way that the video transmission was coming through over Skype for Business,

but the audio transmission was coming through on the Court Solutions platform, which had an unlimited capacity for participants, and so any member of the public could dial in on a muted line and hear the proceedings. And that way you preserve this very important public openness of all trials. Now that also led to us some issues thinking up the video and because they were coming over two different platforms.

But the i T guys at other districts of New York Courthouse in White Plains did a phenomenal job resolving that. Although it was a complex set up using the different video and audio streams, it worked out superbly. What about the challenge of cross examining a witness when you're not in the same room. That must have a different feel

to it than what you're used to. Yes, witness examination had a completely different feel, and the court recognized the challenges as posed at the outset, And because bankruptcy courts, I guess all federal courts nowadays are faced with challenges in allocating their time, it was decided from the outset that direct testimony of witnesses would be submitted in advance by a declaration and so that only cross examination and

redirect examination would be conducted at the video trial. Even with that, there is this enorman, this junction between examining a witness through a video link and the lag time that sometimes occurs and a real live interaction in court. Now granted, this was a bench trial, and so I think the judge was capable of understanding this challenge and dealing with it and not allowing themselves to be influenced

by it as the fact finder. I think it would be extraordinarily hard for jury to deal with this sort of video examination and the setting that's involved. And that's why I think we probably won't be seeing jury trials by video anytime soon. Even as we talk now, you know, we talk over each other sometimes because we're not in the same room, and he's the rhythm of your cross examination affected by a delayed objection or a delayed response.

The most significant challenge on cross examination was the fact that you could not pull out some document for impeachment and show it to the witness and say, ah, doesn't

this disprove what you just swore two under oath. Instead, in this circumstance where there was no ability to share documents in a spontaneous manner with the witness, we had to submit impeachment documents to the witness who was in a distant location under seal in advance, and then at trial have them unsealed, open up that package and say turned him each bit document or thirteen and then go through that whole routine and sort of the the aha moment is lost in that process, and so it does

drain a certain amount of the drama out of the trial. But again, this was a bench trial to judge, and those sorts of courtroom theatrics tend not to be particularly meaningful in a bench trial anyway. But that was definitely a challenge on cross examination. It seems like there are many reasons why it would be difficult, if not impossible,

to have a jury trial by video. June I tried over fifty jury trials, and the reality of a jury trial is that in a commercial case such as this is that for more than a couple of days, the juries are severely taxed in following what he's going on, remaining interested at a case a trade secret case down in Battle Discord in Richmond, Virginia a couple of years ago, in which one member of the jury so persistently fell asleep that support had to finally excuse him, and thankfully

we had a standby juror to take that person's police It is challenging to keep a jury's interest in a live setting with live witnesses and the courtroom, theatrics in a video trial, It would be virtually in possible in your run of the mill commercial case to conduct a jury trial. The jurors were quickly lose attention to what

was going on, lose the threat of the case. If not being a situation similar to many of us, with dogs interrupting them and kids crying in the background and the mail being delivered, it would simply not be workable in a jury trial situation. Well, let me ask you this, were there any advantages at all to having a video trial. The principal advantages the speed and efficiency with which the

trial is conducted. You are not sitting around as many of my colleagues are waiting to get onto an already crowded docket that has been backed up further by the COVID nineteen situation. And that's a major advantage for a plaintiff in commercial litigation. Justice delayed is justice denied, is very true to this day, and so the principal advantage of a video trial is the speed and efficiency with which it gets done. Now, there's certainly a lot of drawbacks.

We've talked about some of them, a lot of challenges for the lawyers in particular, I'm used to having a sharp young attorney behind me who knows where all the exhibits are and knows every document by memory, and could simply turn around and get a yellow stick um from them telling me which document to call up next. And I would frequently turn this trout, turn around, and of course there's nobody there to hand me that yellow stick up.

And so those are the challenges we face. But again, the the ability to get on the court stocket get the case heard quickly is just a major advantage for plainests and commercial litigation. So, Terry, what advice would you give to another lawyer who has to try a case by video? So there are two must dues going into any video trial. The first is you really have to have the court set out the rules of the gang in a carefully thought out pre trial order. We did one,

he you're and offered it up to the court. Court quickly adopted it. It lays out a number of things that we had fought through very careful in advance, such as this question of impeachment documents. How do you use impeachment talk? But it's a whole host of thing. You have to have a very specific, detailed pre trial order on how to conduct the video trial issued by the

court in which every element is thought through. And there now been enough of these video trials going on that you can probably borrow what we did in this case or what others are doing in other video trials. The second piece of advice I would give to anyone going into video trial is you absolutely have to do a dress rehearsal with all parties, all witnesses and the court.

And we did this. We started on a Monday. We did this dress rehearsal on Thursday before the start of the trial, and as part of this order pre trial order, I was just mentioning there was a requirement that everyone participated in the address rehearsal. And we did, in fact experience during the dress rehearsal many technical glitches that we were able to resolve over a several hour period, and therefore when the trial actually started on a Monday morning,

we had no technical glitches whatsoever. Indeed, throughout the course of the four day trial really did not experience any technical glitches. At one point, opposing council accidentally mute it themselves, but that was not a technical glitch. It was simply an accident on the part of an attorney and it was quickly resolved. So address rehearsal is absolutely critical with everyone, every witness, the court, the i T people all involved.

So Terry, what was the verdict? So, as often happens in bench trials, the court is asked for post trial briefing that ties together the evidence actually admit it with the legal theories, and that brief won't even be due until June, and so we might not get a verdict till Midsummer. Well, thanks so much for share in your video trial experience with us. That's intellectual property litigator Terence Ross, a partner at Captain Yuchen Rosenman. And that's it for

the edition of Bloomberg Law. Remember you can always get the latest legal news on our Bloomberg Law podcasts. Just go to iTunes, SoundCloud, or Bloomberg dot com slash podcast Slash Law. I'm June Grasso. Thanks so much for listening, and remember to tune into the Bloomberg Law Show weeknights at tundm Eastern right here on Bloomberg Radio