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Protecting Your Interests

Zoom Expands What’s Possible in Litigation but Has Its Limits

by | Jan 13, 2021 | Publications

Zoom was one of the shows we watched on PBS when I was a little boy in daycare only because Sesame Street wasn’t on. About all I can recall is the refrain from the theme song and the fact that it wasn’t Sesame Street. Sesame Street had cool stuff like Stevie Wonder and his soulful band playing Superstition and Paul Simon doing Me and Julio Down by the Schoolyard. B.B. King and Johnny Cash appeared on Sesame Street. None of that happened on Zoom. But PBS was one of only four television stations at the time and the only one targeting children with educational shows – so we watched Zoom.

Now, Zoom means something entirely different to me – in many ways, it has made law practice possible in the COVID-plagued year 2020. Like many of you, I have had many meetings over Zoom that otherwise could not have safely taken place. I have had numerous Court hearings and conferences, including pretrial conferences with Federal Court Judges. I have participated in several successful mediations over Zoom. I have taken discovery depositions, defended expert depositions, and taken trial depositions over Zoom.

More recently, I tried a medical malpractice jury trial in Rankin County Circuit Court during which several experts were “Zoomed in” live to give testimony. This was a complicated medical malpractice birth injury case and my colleagues Shane Langston, Esq. and Justin Broome, Esq. and I did not expect to try the case this year. But we were able to try the case and get justice for our clients in no small part due to our ability to call experts from across the country to testify by Zoom.

Rankin County Circuit Court Judge Dewey Arthur made it clear that, despite the pandemic, we would try the case this year. When we showed up for the trial on Monday morning November 16, masks on, he announced that, despite the number of expert witnesses and complexity of the issues (including the complexity of the technological issues in the courtroom), we would be done by Friday the 20th. Judge Arthur ran his Courtroom efficiently and we concluded the case with plenty of time for the jurors to deliberate, deliver the verdict and easily get home for supper Friday evening.

I’ve seen it written elsewhere that the pandemic has hastened the development and use of Zoom and other technological advancements. Many firms are questioning the need for lavish offices when it has been demonstrated we can successfully conduct business remotely. I have talked with some “old school” lawyer friends who insist that they need to be in the same room with a witness to depose them. There are certainly some situations where the in-person deposition is preferable.

However, from my perspective, I can save my client (and myself) a great deal of time and money using Zoom. As many of you have experienced, it is easy to use exhibits in a Zoom deposition if you prepare in advance. The problem of getting a document dump from the other side the morning of the deposition is exacerbated when trying to depose someone over Zoom — but, then again, it’s much easier to adjourn the deposition and resume later over Zoom should a serious document issue come up or if the parties need court intervention to address a discovery issue.

Zoom is also a great service for mediations — adjusters and litigants from various parts of the state and country can attend the mediation without incurring the time and expense of traveling. Lawyers and their clients can easily move between joint sessions and their own breakout rooms for confidential discussions between themselves and with the mediator and get business done. Gone are the days when mediation cannot be scheduled due to an adjuster or corporate counsel being unable to attend because of travel constraints.

Perhaps most importantly, Zoom allows for the presentation of live witness testimony at trial when travel and in-person meetings are not only expensive and time-consuming but also dangerous. It’s not always ideal and problems will arise. For example, when defense counsel announced in our recent trial that his first expert would testify live via Zoom, I wasn’t sure how I would be able to effectively use documentary evidence during cross. Counsel opposite was accommodating, telling me we were welcome to use his IT guy but “just make sure to get the exhibits you intend to use to him in advance so he has time to load those in the system…” Not ideal.

Another example where Zoom is not ideal is where you need your most important expert witness to meaningfully connect with the jury and teach them about the important issues in the case. Like the problem of showing the jury a video trial deposition, a witness testifying over Zoom simply cannot connect with the jury like she can in person.

Overall, in my experience, Zoom is a valuable service and helpful to law practice. Now, do yourself a favor – go to YouTube and pull up Stevie Wonder doing Superstition in 1972 on PBS and remind yourself why Sesame Street is much cooler.