Conducting a Remote Civil Bench Trial

Overview

This civil bench trial began in person - four days of the trial were completed prior to the pandemic, and then the trial was stayed due to COVID-19. In May of 2020, the Illinois Supreme Court enacted a few new rules to enable remote court appearance:

“New Illinois Supreme Court Rule 45 and Supreme Court Rule 241 grant courts broad discretion to allow Remote Court Appearances. To improve access to the courts, increase efficiency, and reduce costs, courts should permit Remote Court Appearances to the extent reasonable, feasible, and appropriate. Rule 45 does not require a Case Participant to demonstrate hardship or good cause to appear remotely.”

Based on these orders, the Judge proposed that the trial be continued remotely. Plaintiff counsel drafted remote trial protocols, and the Judge found good cause to conduct the trial virtually. Lexitas was hired to provide the technology, training, and staff necessary for a successful remote trial.

Approach

Providing public access

The Judge wanted to provide both audio and video access to the public, so Lexitas set up a Zoom webinar enabling the public to hear and see the proceedings. The public participants are not to see, hear, nor disrupt proceedings. Using the webinar format is a very secure way to give the public access to court proceedings.

Ensuring the integrity of witness testimony

Of particular concern was making sure that the witnesses were not testifying using any notes, devices, or other aids. Lexitas set up the video technology to allow the Judge and Counsel to confirm that the witness was alone in the room and that all devices were turned off.

Sequestering witnesses using technology

When there was the need to sequester witnesses, Lexitas was able to easily do this by putting the witness in a secure virtual waiting room.

Key Takeaways

The trial took a bit longer than expected due to some issues with one witness’s internet connection. The trial was on hold until he got to a better location. The key to a remote trial is preparation and patience. Testing internet connections ahead of time is important and required by the Judge’s trial protocols. Lexitas can work to test and recommend steps to improve internet connections.

Unexpected Benefits

• The lead plaintiff attorney reported an unexpected advantage to conduct the trial remotely. Pinning the witness video made it easier to cross-examine the witness and assess credibility.
• Electronic exhibits were very efficient and saved time during the trial because everything was at the attorneys’ fingertips. Paralegals did not go back to the office to find an unanticipated document to impeach witnesses in response to new testimony.

Key Recommendations

• Make sure you have a skilled trial technician present for the entirety of the trial. The Lexitas trial technician worked with both sides to provide training, tips, and troubleshooting. In this case, the attorneys handled the display of exhibits themselves and found it surprisingly easy to do via Zoom screen share.
• Working cooperatively with opposing counsel on the draft trial protocol is essential. Both sides need to be on the same page in terms of what processes will be followed during the trial.

Conclusion

Remote bench trials can be more prevalent given the need for judges to get through the backlog of cases because of the pandemic. Plaintiffs want to get a trial date as soon as possible, and defense counsel can benefit from a remote trial due to cost containment and protecting a client or witness who is older or has an underlying health condition. One strong recommendation is to practice with the technology and the trial tech as much as possible. The more preparation you put into this new way of holding trials, the smoother and faster the process will be.