By Dr. Ken Broda Bahm:
Courts over the past year and a half have moved with unprecedented speed into unorthodox territory, exploring ways to conduct trials, or portions of trials, via remote videoconferencing technology. In that setting, perhaps it was only a matter of time before a case would be overturned on appeal due to problems in the use of Zoom. Now, it has happened. In what Law 360 calls the first case of its kind, a Texas appeals court ended the year by handing a victory to an oil and gas production company challenging a county appraisal of its oil and gas operations. The court noted that party’s “lead counsel, who was specifically retained based on his expertise in this area of law, was only present and able to participate at the trial via a video screen and Zoom stream that repeatedly malfunctioned.” Concluding it was an abuse of discretion for the trial court to continue despite the Zoom problems, the appeals court reversed the verdict and remanded the case back for what we assume will be a fully in-person retrial.
Critics of the use of online courtroom technology are likely to pounce on this ruling with an “I told you so” zeal, with traditionalists noting that “this is why trials need to be in-person.” As we go forward into the omicron phase of court disruptions and adaptations, litigants might legitimately wonder, “Are we jeopardizing the durability of our verdict if we use remote participation?” In reviewing the appellate opinion, it seems that the problem was not so much with Zoom itself, as much as it was with the trial court’s practice of pressing ahead even in the face of temporary technical disruptions. The appropriate response is not to avoid distanced participation when necessary, but to ensure the court practice and personnel are dedicated to the task of pausing the proceedings, fixing any glitches or executing backup plans, rather than simply pressing ahead. In this post, I will take a brief look at the case and its lessons.
The Trial
Originally, the case was a jury trial in Scurry County Texas. In August of 2020, in the midst of the pandemic’s first peak, the trial was conducted in-person, with the jury distributed across a high school gymnasium. The lead counsel for the oil and gas company, however, had been instructed by his doctor not to appear in person due to age and other medical factors, and instead was the one person to appear virtually on a large screen in the makeshift courtroom.
While many courts around the country have incorporated remote participation without incident, in this case, unfortunately, the attorney’s participation was marred by a parade of technical difficulties:
- Voir dire was disjointed voir dire with counsel unable to clearly converse and establish rapport.
- Participants experienced difficulty hearing other participants (28 times).
- Audio feedback occurred (3 times).
- A live attorney needed to take over a witness examination from the lead remote attorney (13 times).
Even in a hearing on an oral motion focusing on the technical difficulties and seeking a continuance, the parties experienced repeated problems of an inability to hear each other due to drop outs and “reverberations” in the audio.
The motions were denied, however, and the trial court pressed ahead.
The Lessons
Rule #1: Don’t Go Forward Unless or Until Everyone Is Well Connected
The biggest problem from the appeals court’s perspective wasn’t that some technical difficulties occurred, but that one party’s lead counsel was written out of the trial in response to those difficulties. In the opinion, they note that the trial court insisted, “We are not shutting down the judicial system in Texas because of technology issues that we have dealt with, addressed, and largely overcome.” Only, the problems were not overcome. When lead counsel took his first witness, in that examination alone, there were nineteen complaints of an inability to hear a question or an answer, and three situations where counsel, witness, or the judge could not see exhibits that were offered. After that, the lead counsel stopped taking examinations, and left that to the in-person co-counsel. At one point, the remote attorney lost internet connectivity completely for 30 to 40 minutes, but there is no record that the trial paused at that point.
In not stopping and waiting on the participation of counsel, the court may have been relying on the expectation, enshrined in the Texas Code of Civil Procedure, that “absence of counsel will not be good cause for a continuance or postponement.” But, to my lay eyes, that seems like a prescription designed for a situation like counsel returning from lunch late. If the judge says, “We start at 1 PM,” and you aren’t back at 1 PM, you’re taking the risk that the court simply presses on. But the Zoom problems that plagued this trial seem like a different situation — more akin to returning on-time, but finding the courtroom locked.
From the opinion, it seems that there may have been an inappropriate zeal to press on so that court administrators could obtain the educational benefit of testing out remote participation. “The trial court’s insistence and desire to proceed with and complete this ‘experiment’ for the purpose of providing statistical ‘jury trial’ data to the Office of Court Administration significantly overshadowed [the Appellant’s] fundamental right to due process and representation by counsel of its choice.”
Empower a “Technical Bailiff” to Make Sure that Happens
The appellant had professionals on hand at trial to deal with the technical issues. The problem is that the trial court did not seem to have someone empowered or willing to raise a red flag and pause proceedings when those efforts failed. The judge, of course, is the person who has that ultimate authority, but in practice, in the realm of Zoom, that judge should be aided by someone who might be called the “Technical bailiff.” In the in-person courtroom, the bailiff maintains a functional decorum in the courtroom to make sure things proceed smoothly. That also needs to happen on the technical side. There should be one person who has the job of technically checking to ensure all of the following, and to immediately notify the judge in the event that full participation is not attained or lost at any point.
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- Technology has been checked in advance.
- There is a “Plan B” involving alternate connection or equipment (i.e., a nearby law school conference room) in the event that personal equipment is inadequate.
- All relevant participants are logged in.
- All participants have adequate audio and video participation.
- Everyone knows how to raise an immediate concern in the event that audio or video quality is impaired or lost.
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The principle needs to be that “If we aren’t all connected, then we pause and address it, and we do not proceed until we are all connected.” In a courtroom, expedience can never be more important than basic communication.
As much as we all have experience with Zoom calls gone wrong at this point, the good news is that if courts plan and test systems and backups, and if courts pause to address any problems that crop up, there is no reason that remote participation should be beyond our abilities.
Other Posts on Online Trials:
- Online Trials: Learn from Arizona
- Online Trials: Expect Both Challenges and Opportunities
- The Civil Jury Trial: Treat the Crisis as an Opportunity
Kinder Morgan Production Co. LLC v. Scurry County Appraisal District, case number 11-20-00258, in the Texas Court of Appeals for the Eleventh District.