Further to my earlier blog post in anticipation of the environmental team at Mann Lawyers first virtual trial, I can now report that the trial has been completed and although it ran much more smoothly than I would have envisioned, some of my concerns were quite valid.
A significant issue experienced by all participants at various time over the course of the trial related to sound. These problems included feedback, garbled sound, no sound at all despite the speaker being unmuted and some participants being able to hear the speaker when others could not. To minimize the potential for sound problems, some participants used a telephone call in number rather than a computer microphone. This did not prevent problems. Other participants used peripheral microphones and they also experienced problems. The Court itself, which was using a speakerphone, experienced a number of issues. The most effective solution when sound issues were experienced was to log off of the Zoom call and sign back in. This resulted in some delays in the trial, albeit not particularly lengthy ones.
The other challenge, which is particularly relevant to environmental litigation, concerns documents. These types of trials tend to be very document-heavy, given that there often are numerous reports to go through during a witness’ testimony. This results in a significant amount of screen sharing to ensure that the trial Judge, the lawyers and the witness are looking at the same page. In a Zoom environment, this means that the video images are reduced to thumbnails during large portions of the evidence. Absent the use of two screens, it was generally not possible to view a document via screen sharing and see video of the trial Judge and the witness at the same time. To a large part, this would be dependent upon the number of participants on the Zoom call.
The other issue which arose in respect of documents should be fairly simple, but isn’t. In our case, the matter had been scheduled for trial some time ago and was rescheduled. As the original trial date would have proceeded in person at the Courthouse, all of the documents necessary for the trial were prepared in bound paper books, which were page numbered. Those books were then converted into electronic format for use at the virtual trial. However, because the books had covers and indexes, the page numbers on the paper copy did not match the page numbers of the PDF. Everyone had to be very clear which page number was being referred to so that the correct page was before the Judge, the witness and the lawyers. Since the documents included numerous environmental reports which were each hundreds of pages long, the correct page number became very important when referring the witness to a particular passage. With proper bookmarking of the PDF, and index might not be required, but it would be difficult to envision the filing of materials without a cover page.
There is no doubt that spending several full days looking at Zoom is physically challenging. It is hard on your eyes, your neck and your concentration. To avoid distraction, we fell into a practice whereby only the Judge, lawyers and the witness left their video feed on. It became clear that this would be necessary very early on when one of the participants started to frequently stand up and walk around without turning off the video. It is surprising how any movement at all by one participant focuses your attention on that person regardless of who is speaking.
In all, however, the virtual trial proceeded very smoothly without any catastrophic technical problems. I don’t think it would have taken any less time had it been conducted in person. Overall, I was left quite optimistic by the process.