New Lawyer Lens: Conducting a Virtual Bench Trial in the Pandemic

Before the pandemic, I had conducted three jury trials, two of them in the Hall of Justice in San Diego. I tried a case on Feb. 20, 2020, and was gearing up for another trial when the pandemic hit. Everything came to a standstill. I still showed up to work to litigate or settle out cases. One year later, things seemed to be getting better. But the trial calendar seemed frozen in time. Nothing was moving.

I had an auto accident case coming up for trial. Defense counsel grew tired of waiting for the court to hear jury trials again. My opposing counsel reached out to me to see if I would be interested in a bench trial. I was like, “Sure, why not.” The case was an auto accident case. I thought defense was underselling the case a bit. By the time we were willing to compromise, all money was off the table. Defense greenlit the trial. We had to go.

The parties appeared for the trial readiness conference via Microsoft Teams in the Hall of Justice. We managed to get on the trial calendar the following month, since the parties opted for a bench trial. I met and conferred with opposing counsel and prepared for trial. The only issue for the judge to decide was my client’s damages. Defense admitted to liability and causation, but contended the medical specials were inflated. Defense also disputed my client’s pain and suffering. The judge only needed to decide how much money my client would get.

The parties put on their cases-in-chief in one day, and the judge decided to hear closing arguments the following afternoon. He gave his ruling the second closing arguments were over. I got over $13,000 more than my own section 998 settlement offer, exceeding my expectations. That meant defense had to pay my trial costs, including my expert.

There were pros and cons to conducting a virtual bench trial during the pandemic. One pro was that I got to conduct the trial in my office over MS Teams. I did not have to drive to the court and carry exhibits with me, or pay for parking. My client got to testify in my conference room. To practice social distancing, I had my client testify in my conference room while I was in my office, as I wanted my client to be able to testify without a mask on.

My general damages witness could not miss work, so I had her testify via a smartphone in her car. I had a coworker drive to her place of work with MS Teams downloaded on his phone and hold the phone while she testified. Since he was an attorney, he helped further prep her for her testimony.

There were, of course, cons to a virtual bench trial. None of the expert witnesses had paper binders. The exhibits were sent to them electronically and neither expert had the exhibits readily available. There were also Internet connectivity issues with some testimony. Eventually all hiccups were worked out, and the judge was showing an enormous amount of patience due to the special circumstances of this trial.

Every trial has its adversities to overcome, but with perseverance, a trial is possible, even during a great pandemic.