Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: In the movie My Cousin Vinny, an incredulous judge questions
Speaker 1: a lawyer who's wearing a leather jacket and no tie
Speaker 1: in his courtroom. When you come into my court looking
Speaker 1: like you do, you not only insult me, but you
Speaker 1: insult the integrity of this court. I apologize, said, but
Speaker 1: this is high dress. Next time you come into my courtroom,
Speaker 1: you will look loyally and I mean you call me
Speaker 1: head and wear a suit and tie, and that suit
Speaker 1: that will be made out of some kind of cloth.
Speaker 1: You understand me. Well, this month, a federal judge in
Speaker 1: New York wanted to make sure that lawyers were properly
Speaker 1: dressed for court and issued a similar instruction in a
Speaker 1: written order. Judge Robert Draine had decided to go where
Speaker 1: no other judge has gone before and conduct an entire
Speaker 1: trial by video. It took place in US Bankruptcy Court
Speaker 1: in the Southern District of New York. Well, that's where
Speaker 1: the judge's courtroom is, but the lawyers and witnesses were elsewhere.
Speaker 1: Joining me. As intellectual property litigator Terence Ross, a partner
Speaker 1: Captain Eugen Rosenman. He represented the plaintiff in this case
Speaker 1: between two competing cable companies. So, Terry, what was an
Speaker 1: intellectual property lawyer doing in bankruptcy court? Well, Jim, the
Speaker 1: bankruptcy court actually has jurisdiction over most controversies that arise
Speaker 1: involving a company that's in reorganization, even if it's not
Speaker 1: a traditional bankruptcy area of law. So in this particular case,
Speaker 1: there was a charge of false advertising under the Land
Speaker 1: Act made by my client was in Chapter eleven reorganization,
Speaker 1: and that complaint was brought in the bankruptcy court as
Speaker 1: what is known as an adversary proceeding, and once filed,
Speaker 1: it proceeded in the bankruptcy court as if it were
Speaker 1: any other false advertising case a federal district court. Was
Speaker 1: there an urgency about this? Why did a bankruptcy court
Speaker 1: decide to become a trailblazer? So one of the fundamental
Speaker 1: principles in bankruptcy court is you want to move the
Speaker 1: debt or through the process as quickly as possible and
Speaker 1: get them back out the other side of bankruptcy and
Speaker 1: operating as a regular company. This way, creditors get paid quickly,
Speaker 1: employees are not put out of work and normal operations
Speaker 1: of the company continue. And so in bankruptcy court there
Speaker 1: is a premium on speed and efficiency in moving cases
Speaker 1: and proceedings from start to finish. And so although there
Speaker 1: was a slight delay here due to the COVID nineteen pandemic,
Speaker 1: trial was postponed approximately thirty days. The bankruptcy court did
Speaker 1: not want an extended postponement of the trial because of
Speaker 1: this overarching principle that you see in bankruptcy proceedings. Let's
Speaker 1: move these proceedings through the process as quickly as possible,
Speaker 1: get the creditors paid, and get the company back out.
Speaker 1: On the other side of bankruptcy, judges across the country
Speaker 1: have been holding not trials, but conferences, motions and the
Speaker 1: like by video, and there have been reports of everything
Speaker 1: from barking dogs two lawyers appearing shirtless. Did Judge Drane
Speaker 1: set out any parameters to make sure that didn't happen
Speaker 1: in his virtual courtroom? Yes, the judge did, and it
Speaker 1: was probably one of the most useful things that happened
Speaker 1: in the lead up to the video trial. The court
Speaker 1: issued it long and very carefully fought out trial order,
Speaker 1: which included a provision stating and reminding the lawyers that
Speaker 1: they were in a formal courtroom setting, notwithstanding that they
Speaker 1: were all at distant locations, that the judge himself would
Speaker 1: be conducting this from the courtroom from his bench, and
Speaker 1: that he expected the lawyers to comport themselves in a
Speaker 1: manner consistent with a courtroom appearance, with respect the attire,
Speaker 1: and making sure that they were an environment, although distant
Speaker 1: from the courthouse, that was as close to a courtroom
Speaker 1: like proceeding as possible, and by that the court essentially
Speaker 1: meant no barking dogs, no kids interrupting, find yourself a
Speaker 1: quiet place where you had good WiFi, good connectivity, so
Speaker 1: that this proceeding could be conducted with all the formalities
Speaker 1: of any other trial. We're all getting used to zoom now,
Speaker 1: Was it done by zoom now? Unfortunately it was not.
Speaker 1: The parties actually jointly suggested to the court that WebEx
Speaker 1: be used, in particular because the facility with which you
Speaker 1: can share documents on the WebEx platform. However, the courts
Speaker 1: i T employees wanted to use Skype for business, apparently
Speaker 1: to the licensing reasons the i T department. In both
Speaker 1: sides law firms were completely unfamiliar Skype for Business when
Speaker 1: they started looking into it, realized it was a video
Speaker 1: platform that Microsoft is actually trying to phase out. It
Speaker 1: has significant limitations with respect to the number of persons
Speaker 1: who can participate via video link, and as the number
Speaker 1: grows up, the platform gets very glitchy. And so this
Speaker 1: was a real challenge that the court was insisting upon
Speaker 1: using Skype for business. Coming up next on Bloomberg Law.
Speaker 1: Why it's hard to get that aha moment when cross
Speaker 1: examining a witness a video. It's a cross examination that
Speaker 1: every movie fan and lawyer remembers Tom Cruise cross examining
Speaker 1: Jack Nicholson up close and personal and a few good men,
Speaker 1: Your colonel Jesse, did you order you don't have to
Speaker 1: answer the question. I'll answer the question you want answers.
Speaker 1: I think I'm entitled. You want answer the truth. You
Speaker 1: can't handle the truth. But would there have been such
Speaker 1: a gotcha moment if the cross examination had taken place
Speaker 1: on video with the lawyer and witness in different rooms.
Speaker 1: I've been talking to intellectual property litigator Terence Ross, who
Speaker 1: represented the plaintiff in the first video trial in a
Speaker 1: federal court. So Terry. Before we get to the cross examinations,
Speaker 1: what are some of the other technical problems that you faced,
Speaker 1: so do you One of the core principles of the
Speaker 1: U S Court system is that the courts are open
Speaker 1: to the public to observe, so that the public has
Speaker 1: a right to see what is going on in their courthouses,
Speaker 1: even if they're not involved in the particular proceeding. And
Speaker 1: so we had to set up the platform in such
Speaker 1: a way that any member of the public could at
Speaker 1: least listen in. And indeed, there was press interest in
Speaker 1: this trial and press coverage, and so the limitations on
Speaker 1: the number of participants that we were faced with using
Speaker 1: Skype for Business, we had to use an audio platform
Speaker 1: in addition to Skype for Business, an audio platform commonly
Speaker 1: used by subtle courts called Court Solutions, that's the vendor's name,
Speaker 1: And we set it up in such a way that
Speaker 1: the video transmission was coming through over Skype for Business,
Speaker 1: but the audio transmission was coming through on the Court
Speaker 1: Solutions platform, which had an unlimited capacity for participants, and
Speaker 1: so any member of the public could dial in on
Speaker 1: a muted line and hear the proceedings. And that way
Speaker 1: you preserve this very important public openness of all trials.
Speaker 1: Now that also led to us some issues thinking up
Speaker 1: the video and because they were coming over two different platforms.
Speaker 1: But the i T guys at other districts of New
Speaker 1: York Courthouse in White Plains did a phenomenal job resolving that.
Speaker 1: Although it was a complex set up using the different
Speaker 1: video and audio streams, it worked out superbly. What about
Speaker 1: the challenge of cross examining a witness when you're not
Speaker 1: in the same room. That must have a different feel
Speaker 1: to it than what you're used to. Yes, witness examination
Speaker 1: had a completely different feel, and the court recognized the
Speaker 1: challenges as posed at the outset, And because bankruptcy courts,
Speaker 1: I guess all federal courts nowadays are faced with challenges
Speaker 1: in allocating their time, it was decided from the outset
Speaker 1: that direct testimony of witnesses would be submitted in advance
Speaker 1: by a declaration and so that only cross examination and
Speaker 1: redirect examination would be conducted at the video trial. Even
Speaker 1: with that, there is this enorman, this junction between examining
Speaker 1: a witness through a video link and the lag time
Speaker 1: that sometimes occurs and a real live interaction in court.
Speaker 1: Now granted, this was a bench trial, and so I
Speaker 1: think the judge was capable of understanding this challenge and
Speaker 1: dealing with it and not allowing themselves to be influenced
Speaker 1: by it as the fact finder. I think it would
Speaker 1: be extraordinarily hard for jury to deal with this sort
Speaker 1: of video examination and the setting that's involved. And that's
Speaker 1: why I think we probably won't be seeing jury trials
Speaker 1: by video anytime soon. Even as we talk now, you know,
Speaker 1: we talk over each other sometimes because we're not in
Speaker 1: the same room, and he's the rhythm of your cross
Speaker 1: examination affected by a delayed objection or a delayed response.
Speaker 1: The most significant challenge on cross examination was the fact
Speaker 1: that you could not pull out some document for impeachment
Speaker 1: and show it to the witness and say, ah, doesn't
Speaker 1: this disprove what you just swore two under oath. Instead,
Speaker 1: in this circumstance where there was no ability to share
Speaker 1: documents in a spontaneous manner with the witness, we had
Speaker 1: to submit impeachment documents to the witness who was in
Speaker 1: a distant location under seal in advance, and then at
Speaker 1: trial have them unsealed, open up that package and say
Speaker 1: turned him each bit document or thirteen and then go
Speaker 1: through that whole routine and sort of the the aha
Speaker 1: moment is lost in that process, and so it does
Speaker 1: drain a certain amount of the drama out of the trial.
Speaker 1: But again, this was a bench trial to judge, and
Speaker 1: those sorts of courtroom theatrics tend not to be particularly
Speaker 1: meaningful in a bench trial anyway. But that was definitely
Speaker 1: a challenge on cross examination. It seems like there are
Speaker 1: many reasons why it would be difficult, if not impossible,
Speaker 1: to have a jury trial by video. June I tried
Speaker 1: over fifty jury trials, and the reality of a jury
Speaker 1: trial is that in a commercial case such as this
Speaker 1: is that for more than a couple of days, the
Speaker 1: juries are severely taxed in following what he's going on,
Speaker 1: remaining interested at a case a trade secret case down
Speaker 1: in Battle Discord in Richmond, Virginia a couple of years ago,
Speaker 1: in which one member of the jury so persistently fell
Speaker 1: asleep that support had to finally excuse him, and thankfully
Speaker 1: we had a standby juror to take that person's police
Speaker 1: It is challenging to keep a jury's interest in a
Speaker 1: live setting with live witnesses and the courtroom, theatrics in
Speaker 1: a video trial, It would be virtually in possible in
Speaker 1: your run of the mill commercial case to conduct a
Speaker 1: jury trial. The jurors were quickly lose attention to what
Speaker 1: was going on, lose the threat of the case. If
Speaker 1: not being a situation similar to many of us, with
Speaker 1: dogs interrupting them and kids crying in the background and
Speaker 1: the mail being delivered, it would simply not be workable
Speaker 1: in a jury trial situation. Well, let me ask you this,
Speaker 1: were there any advantages at all to having a video trial.
Speaker 1: The principal advantages the speed and efficiency with which the
Speaker 1: trial is conducted. You are not sitting around as many
Speaker 1: of my colleagues are waiting to get onto an already
Speaker 1: crowded docket that has been backed up further by the
Speaker 1: COVID nineteen situation. And that's a major advantage for a
Speaker 1: plaintiff in commercial litigation. Justice delayed is justice denied, is
Speaker 1: very true to this day, and so the principal advantage
Speaker 1: of a video trial is the speed and efficiency with
Speaker 1: which it gets done. Now, there's certainly a lot of drawbacks.
Speaker 1: We've talked about some of them, a lot of challenges
Speaker 1: for the lawyers in particular, I'm used to having a
Speaker 1: sharp young attorney behind me who knows where all the
Speaker 1: exhibits are and knows every document by memory, and could
Speaker 1: simply turn around and get a yellow stick um from
Speaker 1: them telling me which document to call up next. And
Speaker 1: I would frequently turn this trout, turn around, and of
Speaker 1: course there's nobody there to hand me that yellow stick up.
Speaker 1: And so those are the challenges we face. But again,
Speaker 1: the the ability to get on the court stocket get
Speaker 1: the case heard quickly is just a major advantage for
Speaker 1: plainests and commercial litigation. So, Terry, what advice would you
Speaker 1: give to another lawyer who has to try a case
Speaker 1: by video? So there are two must dues going into
Speaker 1: any video trial. The first is you really have to
Speaker 1: have the court set out the rules of the gang
Speaker 1: in a carefully thought out pre trial order. We did one,
Speaker 1: he you're and offered it up to the court. Court
Speaker 1: quickly adopted it. It lays out a number of things
Speaker 1: that we had fought through very careful in advance, such
Speaker 1: as this question of impeachment documents. How do you use
Speaker 1: impeachment talk? But it's a whole host of thing. You
Speaker 1: have to have a very specific, detailed pre trial order
Speaker 1: on how to conduct the video trial issued by the
Speaker 1: court in which every element is thought through. And there
Speaker 1: now been enough of these video trials going on that
Speaker 1: you can probably borrow what we did in this case
Speaker 1: or what others are doing in other video trials. The
Speaker 1: second piece of advice I would give to anyone going
Speaker 1: into video trial is you absolutely have to do a
Speaker 1: dress rehearsal with all parties, all witnesses and the court.
Speaker 1: And we did this. We started on a Monday. We
Speaker 1: did this dress rehearsal on Thursday before the start of
Speaker 1: the trial, and as part of this order pre trial order,
Speaker 1: I was just mentioning there was a requirement that everyone
Speaker 1: participated in the address rehearsal. And we did, in fact
Speaker 1: experience during the dress rehearsal many technical glitches that we
Speaker 1: were able to resolve over a several hour period, and
Speaker 1: therefore when the trial actually started on a Monday morning,
Speaker 1: we had no technical glitches whatsoever. Indeed, throughout the course
Speaker 1: of the four day trial really did not experience any
Speaker 1: technical glitches. At one point, opposing council accidentally mute it themselves,
Speaker 1: but that was not a technical glitch. It was simply
Speaker 1: an accident on the part of an attorney and it
Speaker 1: was quickly resolved. So address rehearsal is absolutely critical with everyone,
Speaker 1: every witness, the court, the i T people all involved.
Speaker 1: So Terry, what was the verdict? So, as often happens
Speaker 1: in bench trials, the court is asked for post trial
Speaker 1: briefing that ties together the evidence actually admit it with
Speaker 1: the legal theories, and that brief won't even be due
Speaker 1: until June, and so we might not get a verdict
Speaker 1: till Midsummer. Well, thanks so much for share in your
Speaker 1: video trial experience with us. That's intellectual property litigator Terence Ross,
Speaker 1: a partner at Captain Yuchen Rosenman. And that's it for
Speaker 1: the edition of Bloomberg Law. Remember you can always get
Speaker 1: the latest legal news on our Bloomberg Law podcasts. Just
Speaker 1: go to iTunes, SoundCloud, or Bloomberg dot com slash podcast
Speaker 1: Slash Law. I'm June Grasso. Thanks so much for listening,
Speaker 1: and remember to tune into the Bloomberg Law Show weeknights
Speaker 1: at tundm Eastern right here on Bloomberg Radio