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By: David Molinari
Courtroom mastery, compelling examination of witnesses and arguments focused on the emotional aspect of the particular consequences of injury; or the significance and effect of the jury’s finding on the question of liability are all being re-examined with the settings of virtual trials. Trial lawyers must rethink presentation of the case to the jurors. Trial counsel have to be watchful for objecting when a party’s case jumps the tracks from presentation of facts to an infomercial about the party and their claims. For this author, the experience will come in January and February of 2021. After thirty-plus years of looking to two sources for “rules on trying cases;” 1) Your Judge’s Department Rules of trial etiquette; and 2) the California Evidence Code, there are now Rules for Virtual Trials. Virtual trials will test counsel’s skill at shepherding juries through a careful review of the fact to render a verdict consistent with the evidence presented.
In the nation’s first asbestos trial held entirely by video conference to reach a verdict, Honeywell International, Inc. received a defense verdict in a case filed by a former custodian who claimed he got mesothelioma due to exposure to the mineral in brake pads at auto dealerships where he worked. (Ocampo, et al. v. Honeywell International Inc., et al. Alameda County Superior Court Case No.: RG19041182.).
Mr. Ocampo and his wife sued Honeywell after he was diagnosed with mesothelioma that he attributed to exposure to asbestos contained in Bendix Corporation brake linings when he worked at various car dealerships and other businesses. Honeywell had previously acquired Bendix. Honeywell challenged the connection between Mr. Ocampo’s exposure to the Bendix brake linings and him getting cancer.
The defense verdict came after, and in spite of a host of objections regarding technological glitches and allegations that jurors were not paying attention on their remote feeds. Instructing the jury before deliberations began, Alameda County Superior Court Judge Jo-Lynne Lee admonished jurors to deliberate only in the Zoom Breakout room and not allow anyone else in their room or engage in any activities, “including caring for pets.” The remote procedure was “a little rough.” Defense counsel filed a “Notice of Irregularities” two days after the trial started citing a variety of technological glitches as well as assertions that several jurors were walking around, laying down, or in the case of one juror working and emailing from another computer during the parties opening statements.
The skill of making and protecting the record at trial has taken on a more functional aspect. Concern that jurors are not paying close attention or might gloss over details and decide cases by emotion are balanced against keeping jurors and sick or sympathetic parties away from one another, not in the same courtroom, or not passing one another in the hall at recesses. Successful personal injury trial strategies will focus more on counsel’s ability to place emphasis on presenting factual defenses or alternative causes for injuries. Refining the facts and argument for ever-shortening attention spans of jurors to get your point across even if some jurors are not focusing on every detail.
Then there is the skill of learning the technology and figuring out mechanics, like how to safely confer in a breakout room “out of the presence of the jury.” In another Alameda County trial that is ongoing, retired rear admiral Ronald Wilgenbusch is suing MetalClad Insulation for asbestos tort claims. During trial, counsel and the trial judge were conferring in a “breakout room” during Admiral Wilgenbusch’s testimony. While the Court and counsel were conferring, Admiral Wilgenbusch was left in the “Zoom Courtroom” unattended with the jurors, chatting with the jurors and showing them photographs. The defense’s motion for mistrial was denied and MetalClad filed a Petition for Writ of Mandate challenging the trial court’s denial of the mistrial motion arguing such conduct as exhibited by the good admiral was the sort of intentional behavior that “gives rise to an evil that should be scrupulously avoided.” But what was the “evil” to be avoided? Counsel not paying attention, a mistake by inadvertent counsel similar to not objecting to critical evidence or testimony is certainly an “evil” that preparation and thoughtful consideration should have eliminated. Or is the “evil” a new manner for personalizing a party or witness to a jury.
The admiral’s conduct being extreme highlights the issue how impersonal can the personal injury trial be made. Will remote trials usher in a phase of lower verdict amounts because the daily in person connection between the injured plaintiff and the jurors that can subjectively reinforce the significance of injury or resulting limitations cannot be recreated virtually. Can emotions be tempered by sterile and quick paced charts, graphs and power-points conveying one- or two-word memes a la 30 second television commercials.
As the flag goes up on virtual jury trials it will be interesting to see the who leads in the race to master the virtual courtroom and how much the “personal” aspect of the personal injury trial matters in the ultimate recovery.
If you have questions or would like more information, please contact David Molinari at firstname.lastname@example.org.