Zoom: The Final Trial Frontier?

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In a case recently reported by the Asbestos Case Tracker, the nation saw the first asbestos-related Zoom trial go to verdict. While the trial went through to verdict, it was not without serious procedural and technological hiccups that were noted by both sides of the bar and the judge.

During the trial, Honeywell’s counsel filed a “notice of irregularities,” which listed myriad issues with the jurors themselves, including seeing a juror working and emailing from another computer during opening statements and two jurors looking at other screens. The notice also stated that an alternate juror “was lying in bed” during the second day of the trial. In addition to perceived issues with the jurors, counsel on both sides had video and audio feeds cut out multiple times throughout the trial. Witness testimony was delayed, or even postponed, due to problems with their feeds.

In another trial in Alameda County that was settled prior to verdict, the plaintiff—while all counsel and the judge were in a “breakout room”—got into a “friendly discussion” with two jurors about how to change Zoom virtual backgrounds after noticing theirs was a courtroom. The other jurors, according to defense counsel via a paralegal who was observing the jurors, let out “oohs” and “ahhs” as the plaintiff changed his background to the Golden Gate Bridge.

Jury instructions are always a hotly contested topic during a trial, and the advent of a Zoom trial created unique issues. The Jjdge in the Ocampo trial stated the jurors must deliberate alone, and “cannot be engaged in any other tasks, including caring for your pets.” The judge, referring to earlier juror behavior, noted that “you cannot even momentarily do any other work.” In what can only be described as something that would happen in 2020, the judge had to tell the jurors to “conduct yourself as if you’re in court.” In this case, another 2020-first, the jury foreperson filled out the verdict sheet, took a picture of it with their phone, converted it with an app into a PDF, and emailed it to the judge.

Most jurisdictions in the United States have held off on doing asbestos-related trials via Zoom, and based on these two trials, it is no coincidence that both sides of the bar are not clamoring for them. The entire asbestos bar will be closely watching about how each state chooses to proceed; however, until a COVID-19 vaccine becomes widely available, judges and attorneys might be forced to adapt to the new frontier of Zoom trials.