Why Put Off to Tomorrow What You Can Do Today: Courts Move Forward with Virtual Trials

Why Put Off to Tomorrow What You Can Do Today: Courts Move Forward with Virtual Trials

By Rachelle Kuznicki Zidar, Esq. and Michael R. Nakon, Esq.

At the outset of the Covid-19 Pandemic, courts across the county shut down for all but the most emergency proceedings.  Since that time, many courts, including those in Ohio, have opened their doors, but with strict protections and limitations in place, opting for telephonic or video conferences instead of in-person proceedings for routine scheduling matters and limited issue hearings.  Jury trials however, were essentially put on hold, compounding the already crowded dockets of most civil courts until courtrooms could be retrofitted to comply with social distancing standards and protections.  Even then, the criminal docket (right to a speedy trial) takes precedence over the civil docket when vying to secure a suitable courtroom for trial. For clients who in many instances have already endured years of frustration, this added delay only adds salt to the wound.  There is a growing trend, however, to address this crisis: proceed with a virtual trial.

Videoconferencing technology has significantly advanced over the last several years (and seemingly even more so since the Covid-19 outbreak in March 2020).  These advances grant courts and litigants an opportunity to bring their claims to resolution without exposing themselves to the risks of an in-person proceeding during the pandemic.

Particularly on point, the court in Gould Electronics Inc. v Livingston County Road Commission, — F.3d —, 2020 WL 3717792 (E.D. Mich. 2020) dismissed the litigants’ objections to holding a virtual trial, determining video conference proceedings adequately protected due process rights..  While the courts of each state will dictate the ability to hold a virtual trial, Gould determined that the Federal of Civil Procedure – specifically Fed.R.Civ.P. 43(a) and 77(b) – grant district courts the discretion to hold a trial entirely virtually.  Gould followed the precedent established by the District Court of Minnesota on March 10, 2020 in one of the earliest decisions to address the propriety of virtual proceedings.  See, In re RFC and ResCap Liquidating Trust Action, 444 F.Supp.3d. 967, 970 (D.Minn. 2020).  There, the court found that the Covid-19 pandemic constitutes “good cause in compelling circumstances” under Fed.R.Civ.P. 43(a) justifying virtual proceedings.  See also, Argonaut Insurance Co. v. Manetta Enterprises, Inc., No. 19-CV-00482, 2020 WL 3104033, *2 (E.D.N.Y. June 11, 2020).

The court in Gould went on to specifically discuss and dismiss any concerns regarding a party’s constitutional rights to confront and cross examine witnesses, the complexity of expert testimony, and the potential for technical glitches interrupting a virtual proceeding.

The court noted that while a litigant has the constitutional right of due process to confront witnesses against him, that right is adequately preserved and fulfilled through virtual confrontation.  See also, Xcoal Energy & Resources v. Bluestone Energy Sales Corp., No. 18-819-LPS, 2020 WL 4794533, *2 (D.Del. Aug. 18, 2020) (“While Defendants continue to raise vague and conclusory assertions that due process rights require the trial to be held in person, they cite no authority for their position, and – as Plaintiff correctly observes – courts are regularly determining that, in light of the ongoing pandemic, taking testimony remotely is sometimes the best available (and adequate) option.”).

The court in Gould commented: “the instantaneous transmission of video testimony permits the Court and counsel to view a witness live ‘along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, [and] his calmness or consideration.'”  Id. (quoting RFC, 444 F.Supp.3d at 970). “Not only is opposing counsel entitled to cross-examine witnesses, but the Court may also examine witnesses regarding their testimony under Federal Rule of Evidence 614(b).  Further, the proceedings will be accessible to public viewing.  Thus, the parties will not be deprived of their right to effectively confront and cross-examine witnesses in a public setting.”  Id.; see also Xcoal Energy & Resources, supra (“The Court believes (and is every day observing) that able counsel can effectively examine witnesses without being in the same room, providing the Court with the evidence it needs to make necessary factual findings, including credibility assessments.”).

The court was further unmoved by the argument that expert witnesses could not successfully convey complex testimony to the fact finder.  In contrast, Gould found that a virtual proceeding would not so harm an expert’s testimony that the fact finder will not be able to comprehend the message.  Id. at *6.

On a final point, the court in Gould appreciated, and even expected, that there might be technical glitches in proceeding entirely virtually.  However, the court felt this concern, compared to the timely conclusion of the matter, was no obstacle to moving forward.  Id.; see also Argonaut Insurance Co. at *3 “The Court does not find that the occasional technical “glitch” that can occur with video-conferencing software – which can be addressed by the Court and parties if or when it occurs – is a sufficient reason not to use video-conferencing for trial and does not justify postponing the trial indefinitely.”

This is good news for parties to stalled litigation as there is now ample authority (especially in federal cases) to move the court to proceed with a virtual trial, rather than wait until some future,  unknown date when the courtrooms will be fully open and available to hear the backlog of cases.

For additional resources on the propriety of virtual proceedings, see:

Flores v. Town of Islip, No. 18-CV-3549 (GRB)(ST), 2020 WL 5211052 (E.D.N.Y. Sept. 1, 2020)

Sutphin v. Ethicon, Inc., No. 2:14-cv-01379, 2020 WL 5229448 (S.D.W.V. Sept. 1, 2020)

United States v. Gigante, 166 F.3d 75 (2d Cir. 1999)

Centripetal Networks, Inc. v. Cisco Systems, Inc., No. 2:18cv94, 2020 WL 3411385 (E.D. Virginia April 23, 2020)

Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, No. 17-1390-LPS-CJB, 02020 WL 3605623 (D.Del. July 2, 2020)

Aoki v. Gilbert, No. 2:11-cv-02797, 2019 WL 1243719 (E.D. Cal. Mar. 18, 2019)

Lynch v. State, No. HHDCV166067438, 2020 WL 5984790 (Conn. Super. Ct. Sept. 11, 2020)

Ciccone v. One W. 64th St., Inc., No. 651748/2016, 2020 WL 5362065 (N.Y. Sup. Ct. Sept. 4, 2020)

Strommen v. Larson, No. OP 20-0327, 2020 WL 3791665 (Mont. July 7, 2020)


This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.