WEBVTT - Inside the First Video Trial

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<v Speaker 1>This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>In the movie My Cousin Vinny, an incredulous judge questions

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<v Speaker 1>a lawyer who's wearing a leather jacket and no tie

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<v Speaker 1>in his courtroom. When you come into my court looking

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<v Speaker 1>like you do, you not only insult me, but you

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<v Speaker 1>insult the integrity of this court. I apologize, said, but

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<v Speaker 1>this is high dress. Next time you come into my courtroom,

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<v Speaker 1>you will look loyally and I mean you call me

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<v Speaker 1>head and wear a suit and tie, and that suit

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<v Speaker 1>that will be made out of some kind of cloth.

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<v Speaker 1>You understand me. Well, this month, a federal judge in

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<v Speaker 1>New York wanted to make sure that lawyers were properly

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<v Speaker 1>dressed for court and issued a similar instruction in a

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<v Speaker 1>written order. Judge Robert Draine had decided to go where

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<v Speaker 1>no other judge has gone before and conduct an entire

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<v Speaker 1>trial by video. It took place in US Bankruptcy Court

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<v Speaker 1>in the Southern District of New York. Well, that's where

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<v Speaker 1>the judge's courtroom is, but the lawyers and witnesses were elsewhere.

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<v Speaker 1>Joining me. As intellectual property litigator Terence Ross, a partner

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<v Speaker 1>Captain Eugen Rosenman. He represented the plaintiff in this case

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<v Speaker 1>between two competing cable companies. So, Terry, what was an

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<v Speaker 1>intellectual property lawyer doing in bankruptcy court? Well, Jim, the

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<v Speaker 1>bankruptcy court actually has jurisdiction over most controversies that arise

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<v Speaker 1>involving a company that's in reorganization, even if it's not

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<v Speaker 1>a traditional bankruptcy area of law. So in this particular case,

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<v Speaker 1>there was a charge of false advertising under the Land

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<v Speaker 1>Act made by my client was in Chapter eleven reorganization,

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<v Speaker 1>and that complaint was brought in the bankruptcy court as

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<v Speaker 1>what is known as an adversary proceeding, and once filed,

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<v Speaker 1>it proceeded in the bankruptcy court as if it were

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<v Speaker 1>any other false advertising case a federal district court. Was

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<v Speaker 1>there an urgency about this? Why did a bankruptcy court

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<v Speaker 1>decide to become a trailblazer? So one of the fundamental

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<v Speaker 1>principles in bankruptcy court is you want to move the

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<v Speaker 1>debt or through the process as quickly as possible and

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<v Speaker 1>get them back out the other side of bankruptcy and

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<v Speaker 1>operating as a regular company. This way, creditors get paid quickly,

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<v Speaker 1>employees are not put out of work and normal operations

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<v Speaker 1>of the company continue. And so in bankruptcy court there

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<v Speaker 1>is a premium on speed and efficiency in moving cases

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<v Speaker 1>and proceedings from start to finish. And so although there

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<v Speaker 1>was a slight delay here due to the COVID nineteen pandemic,

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<v Speaker 1>trial was postponed approximately thirty days. The bankruptcy court did

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<v Speaker 1>not want an extended postponement of the trial because of

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<v Speaker 1>this overarching principle that you see in bankruptcy proceedings. Let's

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<v Speaker 1>move these proceedings through the process as quickly as possible,

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<v Speaker 1>get the creditors paid, and get the company back out.

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<v Speaker 1>On the other side of bankruptcy, judges across the country

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<v Speaker 1>have been holding not trials, but conferences, motions and the

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<v Speaker 1>like by video, and there have been reports of everything

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<v Speaker 1>from barking dogs two lawyers appearing shirtless. Did Judge Drane

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<v Speaker 1>set out any parameters to make sure that didn't happen

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<v Speaker 1>in his virtual courtroom? Yes, the judge did, and it

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<v Speaker 1>was probably one of the most useful things that happened

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<v Speaker 1>in the lead up to the video trial. The court

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<v Speaker 1>issued it long and very carefully fought out trial order,

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<v Speaker 1>which included a provision stating and reminding the lawyers that

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<v Speaker 1>they were in a formal courtroom setting, notwithstanding that they

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<v Speaker 1>were all at distant locations, that the judge himself would

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<v Speaker 1>be conducting this from the courtroom from his bench, and

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<v Speaker 1>that he expected the lawyers to comport themselves in a

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<v Speaker 1>manner consistent with a courtroom appearance, with respect the attire,

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<v Speaker 1>and making sure that they were an environment, although distant

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<v Speaker 1>from the courthouse, that was as close to a courtroom

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<v Speaker 1>like proceeding as possible, and by that the court essentially

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<v Speaker 1>meant no barking dogs, no kids interrupting, find yourself a

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<v Speaker 1>quiet place where you had good WiFi, good connectivity, so

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<v Speaker 1>that this proceeding could be conducted with all the formalities

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<v Speaker 1>of any other trial. We're all getting used to zoom now,

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<v Speaker 1>Was it done by zoom now? Unfortunately it was not.

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<v Speaker 1>The parties actually jointly suggested to the court that WebEx

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<v Speaker 1>be used, in particular because the facility with which you

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<v Speaker 1>can share documents on the WebEx platform. However, the courts

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<v Speaker 1>i T employees wanted to use Skype for business, apparently

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<v Speaker 1>to the licensing reasons the i T department. In both

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<v Speaker 1>sides law firms were completely unfamiliar Skype for Business when

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<v Speaker 1>they started looking into it, realized it was a video

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<v Speaker 1>platform that Microsoft is actually trying to phase out. It

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<v Speaker 1>has significant limitations with respect to the number of persons

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<v Speaker 1>who can participate via video link, and as the number

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<v Speaker 1>grows up, the platform gets very glitchy. And so this

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<v Speaker 1>was a real challenge that the court was insisting upon

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<v Speaker 1>using Skype for business. Coming up next on Bloomberg Law.

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<v Speaker 1>Why it's hard to get that aha moment when cross

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<v Speaker 1>examining a witness a video. It's a cross examination that

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<v Speaker 1>every movie fan and lawyer remembers Tom Cruise cross examining

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<v Speaker 1>Jack Nicholson up close and personal and a few good men,

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<v Speaker 1>Your colonel Jesse, did you order you don't have to

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<v Speaker 1>answer the question. I'll answer the question you want answers.

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<v Speaker 1>I think I'm entitled. You want answer the truth. You

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<v Speaker 1>can't handle the truth. But would there have been such

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<v Speaker 1>a gotcha moment if the cross examination had taken place

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<v Speaker 1>on video with the lawyer and witness in different rooms.

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<v Speaker 1>I've been talking to intellectual property litigator Terence Ross, who

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<v Speaker 1>represented the plaintiff in the first video trial in a

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<v Speaker 1>federal court. So Terry. Before we get to the cross examinations,

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<v Speaker 1>what are some of the other technical problems that you faced,

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<v Speaker 1>so do you One of the core principles of the

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<v Speaker 1>U S Court system is that the courts are open

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<v Speaker 1>to the public to observe, so that the public has

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<v Speaker 1>a right to see what is going on in their courthouses,

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<v Speaker 1>even if they're not involved in the particular proceeding. And

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<v Speaker 1>so we had to set up the platform in such

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<v Speaker 1>a way that any member of the public could at

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<v Speaker 1>least listen in. And indeed, there was press interest in

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<v Speaker 1>this trial and press coverage, and so the limitations on

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<v Speaker 1>the number of participants that we were faced with using

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<v Speaker 1>Skype for Business, we had to use an audio platform

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<v Speaker 1>in addition to Skype for Business, an audio platform commonly

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<v Speaker 1>used by subtle courts called Court Solutions, that's the vendor's name,

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<v Speaker 1>And we set it up in such a way that

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<v Speaker 1>the video transmission was coming through over Skype for Business,

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<v Speaker 1>but the audio transmission was coming through on the Court

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<v Speaker 1>Solutions platform, which had an unlimited capacity for participants, and

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<v Speaker 1>so any member of the public could dial in on

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<v Speaker 1>a muted line and hear the proceedings. And that way

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<v Speaker 1>you preserve this very important public openness of all trials.

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<v Speaker 1>Now that also led to us some issues thinking up

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<v Speaker 1>the video and because they were coming over two different platforms.

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<v Speaker 1>But the i T guys at other districts of New

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<v Speaker 1>York Courthouse in White Plains did a phenomenal job resolving that.

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<v Speaker 1>Although it was a complex set up using the different

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<v Speaker 1>video and audio streams, it worked out superbly. What about

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<v Speaker 1>the challenge of cross examining a witness when you're not

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<v Speaker 1>in the same room. That must have a different feel

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<v Speaker 1>to it than what you're used to. Yes, witness examination

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<v Speaker 1>had a completely different feel, and the court recognized the

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<v Speaker 1>challenges as posed at the outset, And because bankruptcy courts,

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<v Speaker 1>I guess all federal courts nowadays are faced with challenges

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<v Speaker 1>in allocating their time, it was decided from the outset

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<v Speaker 1>that direct testimony of witnesses would be submitted in advance

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<v Speaker 1>by a declaration and so that only cross examination and

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<v Speaker 1>redirect examination would be conducted at the video trial. Even

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<v Speaker 1>with that, there is this enorman, this junction between examining

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<v Speaker 1>a witness through a video link and the lag time

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<v Speaker 1>that sometimes occurs and a real live interaction in court.

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<v Speaker 1>Now granted, this was a bench trial, and so I

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<v Speaker 1>think the judge was capable of understanding this challenge and

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<v Speaker 1>dealing with it and not allowing themselves to be influenced

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<v Speaker 1>by it as the fact finder. I think it would

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<v Speaker 1>be extraordinarily hard for jury to deal with this sort

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<v Speaker 1>of video examination and the setting that's involved. And that's

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<v Speaker 1>why I think we probably won't be seeing jury trials

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<v Speaker 1>by video anytime soon. Even as we talk now, you know,

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<v Speaker 1>we talk over each other sometimes because we're not in

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<v Speaker 1>the same room, and he's the rhythm of your cross

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<v Speaker 1>examination affected by a delayed objection or a delayed response.

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<v Speaker 1>The most significant challenge on cross examination was the fact

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<v Speaker 1>that you could not pull out some document for impeachment

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<v Speaker 1>and show it to the witness and say, ah, doesn't

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<v Speaker 1>this disprove what you just swore two under oath. Instead,

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<v Speaker 1>in this circumstance where there was no ability to share

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<v Speaker 1>documents in a spontaneous manner with the witness, we had

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<v Speaker 1>to submit impeachment documents to the witness who was in

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<v Speaker 1>a distant location under seal in advance, and then at

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<v Speaker 1>trial have them unsealed, open up that package and say

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<v Speaker 1>turned him each bit document or thirteen and then go

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<v Speaker 1>through that whole routine and sort of the the aha

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<v Speaker 1>moment is lost in that process, and so it does

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<v Speaker 1>drain a certain amount of the drama out of the trial.

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<v Speaker 1>But again, this was a bench trial to judge, and

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<v Speaker 1>those sorts of courtroom theatrics tend not to be particularly

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<v Speaker 1>meaningful in a bench trial anyway. But that was definitely

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<v Speaker 1>a challenge on cross examination. It seems like there are

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<v Speaker 1>many reasons why it would be difficult, if not impossible,

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<v Speaker 1>to have a jury trial by video. June I tried

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<v Speaker 1>over fifty jury trials, and the reality of a jury

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<v Speaker 1>trial is that in a commercial case such as this

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<v Speaker 1>is that for more than a couple of days, the

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<v Speaker 1>juries are severely taxed in following what he's going on,

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<v Speaker 1>remaining interested at a case a trade secret case down

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<v Speaker 1>in Battle Discord in Richmond, Virginia a couple of years ago,

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<v Speaker 1>in which one member of the jury so persistently fell

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<v Speaker 1>asleep that support had to finally excuse him, and thankfully

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<v Speaker 1>we had a standby juror to take that person's police

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<v Speaker 1>It is challenging to keep a jury's interest in a

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<v Speaker 1>live setting with live witnesses and the courtroom, theatrics in

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<v Speaker 1>a video trial, It would be virtually in possible in

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<v Speaker 1>your run of the mill commercial case to conduct a

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<v Speaker 1>jury trial. The jurors were quickly lose attention to what

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<v Speaker 1>was going on, lose the threat of the case. If

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<v Speaker 1>not being a situation similar to many of us, with

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<v Speaker 1>dogs interrupting them and kids crying in the background and

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<v Speaker 1>the mail being delivered, it would simply not be workable

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<v Speaker 1>in a jury trial situation. Well, let me ask you this,

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<v Speaker 1>were there any advantages at all to having a video trial.

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<v Speaker 1>The principal advantages the speed and efficiency with which the

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<v Speaker 1>trial is conducted. You are not sitting around as many

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<v Speaker 1>of my colleagues are waiting to get onto an already

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<v Speaker 1>crowded docket that has been backed up further by the

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<v Speaker 1>COVID nineteen situation. And that's a major advantage for a

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<v Speaker 1>plaintiff in commercial litigation. Justice delayed is justice denied, is

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<v Speaker 1>very true to this day, and so the principal advantage

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<v Speaker 1>of a video trial is the speed and efficiency with

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<v Speaker 1>which it gets done. Now, there's certainly a lot of drawbacks.

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<v Speaker 1>We've talked about some of them, a lot of challenges

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<v Speaker 1>for the lawyers in particular, I'm used to having a

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<v Speaker 1>sharp young attorney behind me who knows where all the

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<v Speaker 1>exhibits are and knows every document by memory, and could

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<v Speaker 1>simply turn around and get a yellow stick um from

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<v Speaker 1>them telling me which document to call up next. And

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<v Speaker 1>I would frequently turn this trout, turn around, and of

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<v Speaker 1>course there's nobody there to hand me that yellow stick up.

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<v Speaker 1>And so those are the challenges we face. But again,

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<v Speaker 1>the the ability to get on the court stocket get

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<v Speaker 1>the case heard quickly is just a major advantage for

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<v Speaker 1>plainests and commercial litigation. So, Terry, what advice would you

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<v Speaker 1>give to another lawyer who has to try a case

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<v Speaker 1>by video? So there are two must dues going into

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<v Speaker 1>any video trial. The first is you really have to

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<v Speaker 1>have the court set out the rules of the gang

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<v Speaker 1>in a carefully thought out pre trial order. We did one,

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<v Speaker 1>he you're and offered it up to the court. Court

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<v Speaker 1>quickly adopted it. It lays out a number of things

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<v Speaker 1>that we had fought through very careful in advance, such

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<v Speaker 1>as this question of impeachment documents. How do you use

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<v Speaker 1>impeachment talk? But it's a whole host of thing. You

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<v Speaker 1>have to have a very specific, detailed pre trial order

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<v Speaker 1>on how to conduct the video trial issued by the

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<v Speaker 1>court in which every element is thought through. And there

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<v Speaker 1>now been enough of these video trials going on that

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<v Speaker 1>you can probably borrow what we did in this case

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<v Speaker 1>or what others are doing in other video trials. The

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<v Speaker 1>second piece of advice I would give to anyone going

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<v Speaker 1>into video trial is you absolutely have to do a

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<v Speaker 1>dress rehearsal with all parties, all witnesses and the court.

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<v Speaker 1>And we did this. We started on a Monday. We

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<v Speaker 1>did this dress rehearsal on Thursday before the start of

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<v Speaker 1>the trial, and as part of this order pre trial order,

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<v Speaker 1>I was just mentioning there was a requirement that everyone

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<v Speaker 1>participated in the address rehearsal. And we did, in fact

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<v Speaker 1>experience during the dress rehearsal many technical glitches that we

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<v Speaker 1>were able to resolve over a several hour period, and

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<v Speaker 1>therefore when the trial actually started on a Monday morning,

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<v Speaker 1>we had no technical glitches whatsoever. Indeed, throughout the course

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<v Speaker 1>of the four day trial really did not experience any

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<v Speaker 1>technical glitches. At one point, opposing council accidentally mute it themselves,

0:15:26.160 --> 0:15:29.600
<v Speaker 1>but that was not a technical glitch. It was simply

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<v Speaker 1>an accident on the part of an attorney and it

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<v Speaker 1>was quickly resolved. So address rehearsal is absolutely critical with everyone,

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<v Speaker 1>every witness, the court, the i T people all involved.

0:15:40.200 --> 0:15:44.440
<v Speaker 1>So Terry, what was the verdict? So, as often happens

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<v Speaker 1>in bench trials, the court is asked for post trial

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<v Speaker 1>briefing that ties together the evidence actually admit it with

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<v Speaker 1>the legal theories, and that brief won't even be due

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<v Speaker 1>until June, and so we might not get a verdict

0:15:57.680 --> 0:16:00.400
<v Speaker 1>till Midsummer. Well, thanks so much for share in your

0:16:00.560 --> 0:16:05.680
<v Speaker 1>video trial experience with us. That's intellectual property litigator Terence Ross,

0:16:05.760 --> 0:16:08.800
<v Speaker 1>a partner at Captain Yuchen Rosenman. And that's it for

0:16:08.800 --> 0:16:11.640
<v Speaker 1>the edition of Bloomberg Law. Remember you can always get

0:16:11.640 --> 0:16:14.560
<v Speaker 1>the latest legal news on our Bloomberg Law podcasts. Just

0:16:14.680 --> 0:16:18.920
<v Speaker 1>go to iTunes, SoundCloud, or Bloomberg dot com slash podcast

0:16:18.960 --> 0:16:22.520
<v Speaker 1>Slash Law. I'm June Grasso. Thanks so much for listening,

0:16:22.680 --> 0:16:25.240
<v Speaker 1>and remember to tune into the Bloomberg Law Show weeknights

0:16:25.280 --> 0:16:27.840
<v Speaker 1>at tundm Eastern right here on Bloomberg Radio