Beyond The Will

Prior to 2020, “Trial by Zoom” is a phrase that, for most of us, would have conjured to mind the classic dispute resolution method of youth: “I’ll race you for it.”  However, starting on March 13, 2020, the Massachusetts Supreme Judicial issued a series of Orders that put a halt to all jury trials and most bench trials (trials where there is no jury, only a judge).  At present, jury trials will resume on September 9, 2020, and may be conducted in person or by videoconference.  Civil bench trials, which include all Probate and Family Court cases and some probate-related cases in Superior Court, resumed on July 13, 2020, and will be conducted at the discretion of the Court.  It is worth noting that how quickly trials will be scheduled, or whether they have even resumed scheduling, varies county-by-county.  There are also very limited “emergency” exceptions for in-person trials.

What does that mean for probate litigation?  Under the current orders, it appears that trials, where they happen, will largely be conducted by Zoom or other videoconference software.  That is likely to continue being the case until it is safe for our Courts to resume normal operations.

So, does Trial by Zoom work?  How does it work?  What do I need to know?  Foremost, Zoom is a workable platform for trial, with some caveats.  Having sat through two days of trial by Zoom, here’s what I have learned:

1. Good order is necessary for Zoom hearings to run efficiently. Expect the judge to take on a firm role as air-traffic controller; they will let each party/counsel know when to speak and will allocate time for responses.  In my case, anyone who was not given the floor remained on mute – a practice I recommend even if it is not imposed, since it will improve everyone’s sound quality and avoid unintentional distractions.  It is also a good practice, if you are speaking, to allow a brief pause between arguments or topics, in order to allow the Court or other participants a chance to unmute and be heard, in case there is follow-up.
2. Co-operation between counsel is key. While our legal system remains adversarial in nature, the COVID-19 pandemic has made it more imperative than ever that counsel co-operate where possible.  Narrowing the issues as much as possible is one area.  Parties may be tempted to oppose each other on every issue in the hope of getting leverage, but most cases boil down to a few key issues.  Get there.  A well-defined issue is much easier for the Court to hear and resolve than a murky contest where every fact is disputed.
3. Avoid interruptions unless they are absolutely necessary. Interruptions are generally frowned upon in normal times but are also more common than they should be.  In Zoom hearings unnecessary interruptions can bring productivity to a halt — as many of us have learned from school- and work-related Zoom meetings.  Strategic, targeted objections remain possible and a good practice, so experienced counsel who know which objections are important will have an edge over those who object to everything.  While it did not happen in my case, it is not hard to imagine a judge exercising their ability to mute a participant, counsel, or party, who is deliberately disruptive (a power I can only assume judges wish they had during in-person hearings as well).
4. Organized exhibits are imperative. While this is always true, it is even more so now that there’s little to no opportunity for parties to make last-minute adjustments just before hearing.  And, from the Court’s perspective, parties and counsel should have as many of those exhibits agreed upon as possible.  The reason is that while screen-sharing is possible, the normal procedure for validating and admitting documentary exhibits is particularly cumbersome.  Screen sharing cannot be relied upon to make a document legible to other participants, so you will likely need to forward exhibit binders to all parties, witnesses, and the Court well in advance.  Last-minute changes to exhibit lists are not uncommon in “normal” practice, but create chaos in a videoconference environment.  This is one area where I would recommend against trial by Zoom – if you have a document-heavy case and will need to refer witnesses to those documents, it might be best to wait, if you can.
5. Take the time to organize your set-up and space. One of the key functions of trial is to assess the credibility of witnesses.  This is harder on video than in person, so take the time to make sure that you have good lighting and are in a neutral location – particularly if you will be speaking on the call.  It can be a challenge to read facial expressions when someone is in partial shadow and it may give you a more ominous appearance than is desirable.  For those who have bad lighting situations at home, it may be worthwhile to pick up an inexpensive ring light (long used by portrait photographers, but now sometimes called a “make-up” or “selfie” light).  To the extent possible, choose a location with a neutral background – you want the focus to be on you, not what is on the wall.
6. Give your exact set up a test-run before the trial date. Recruit a friend to take the call.  While the Zoom app and others offer a “video preview” of what you will look like, it doesn’t offer any feedback on sound quality.  You may discover that relatively quiet, nearby noises come through loud and clear; during two days of trial, we had several audio issues.  They weren’t anyone’s “fault” but did present a problem and significant amounts of court time was spent trying to resolve those issues.  Few things are as disruptive to a Zoom trial as persistent background noises.  Likewise, the video preview is unlikely to show you the limits of a “digital background” if you use one.
7. Dress the part. As tempting as it may be to extend your shorts-and-a-tank streak, these hearings are still formal dress.  The judge will still be in robes, so litigants and counsel should be dressed as if they were appearing in the courthouse.  I haven’t seen it personally, but I have heard rumors of some counsel and parties appearing in inappropriate attire.
8. If it is not perfect, don’t panic. One of the most striking aspects of the Zoom trial I watched was the consistent, patient focus of the judge and participants on resolving any issues that needed to be resolved.  We had participants who couldn’t get into the video conference, surprise background noises, inconsistent digital backgrounds, participants who had a hard time with the “mute” function, and a few surprise interruptions or exits by participants.  The Court and participants were uniformly patient and cooperative while those issues were resolved.  So, if you run into a problem, don’t panic.  And if someone else runs into a problem, be patient.  This system of trying cases is brand-new and everyone involved, judges, parties, and counsel are all still up against a significant learning curve, but, with a little co-operation, it can and does work.

Good luck, and stay safe.

Russell