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August 2021

The New World of Litigation: Evolving Virtually from Traditional Courtrooms

Before March 2020, it was never envisioned that jury trials would be conducted virtually, and it was unthinkable that a virtual jury trial could be successfully conducted cross-country.  But then the COVID-19 pandemic hit the United States and the way litigators approached litigation from depositions to mediations to jury trials was changed forever.  The impact of the pandemic forced the courts and trial lawyers to re-imagine jury trials, something that has not happened in more than 200 years.  This impact was displayed at its fullest when the Gordon Rees Scully Mansukhani trial team consisting of Atlanta Partner Chad Shultz, Seattle Partners Sarah Turner and Derek Bishop, and Seattle paralegal Edward Lesnick, tried the same employment case once pre-pandemic in Fall 2019 in the traditional courthouse setting with in-person witnesses, judge and jurors; and again during the pandemic in Summer 2021, virtually by Zoom.  

While Washington state in particular has been on the forefront of conducting Zoom trials during the pandemic, what made this situation so unique was not only having the benefit of comparing and contrasting the same case that was tried both in the traditional courthouse and virtually, but that the set-up of this eight-day virtual trial included participants in all four corners of the United States, across three time zones, with 20 different computers and Wi-Fi systems, and the technology worked nearly flawlessly.  From jury selection to closing arguments, we share our observations of this Zoom trial, and explore the differences we experienced with having the benefit of litigating the same case twice. 

The first obvious question is why this case was tried twice and two years apart.  The first jury trial took place from August 26 to September 9, 2019, in the U.S. District Court Western District of Washington courthouse in Tacoma in a traditional courtroom setting.  The jury could not agree on a verdict so a retrial was declared and was ultimately calendared for early 2020.  Then COVID hit Washington and by mid-March the federal and state government and courts shut down.  During the course of the year, the judge who presided over the first trial retired and the case was reassigned to a senior judge who sits in both Western District of Washington and the D.C. Circuit. Shortly after reassignment the judge announced that our jury trial would be conducted entirely virtual via Zoom, and it was initially scheduled for May 10, 2021.  However, due to a mishap with the jury pool (which displayed a weakness, but albeit a correctable one of virtual trials), the jury trial was rescheduled for July 6, 2021.  Since this second jury trial was held virtually we never were in the same room with the Judge or the courtroom staff (court reporter, deputy clerk, or law clerk).  The Judge presided over this case from D.C., and to the best of our knowledge her courtroom staff worked out of their homes in Western Washington. The jurors participated from their homes and were selected from Tacoma to Vancouver, and east to the Cascades.  The Plaintiff and her trial team were located in Seattle, the Defendant employer and its defense team were located in Atlanta, and witnesses testified from Washington, Georgia, and California.

Trial lawyers rely on precedent and antiquated court room procedures.  Those traditions were abruptly challenged in 2020 and required immediate re-examination of the way attorneys litigate cases, up to and including jury trials. There are logistical and tactical differences presented by the two forums, which are in many ways the same, but also very different.  There are positives and unique challenges associated with both trial forums.   Our experience with trying the same case in both forums creates a comparison that no other lawyer can truly explain, unless they have also had the experience of litigating the exact same case in the traditional and virtual forum.  Change is a constant and while the legal community has a tendency to resist anything out of the well-established norm, the Pandora box has been opened and virtual jury trials will no longer be viewed as impracticable. Virtual litigation and jury trials were driven by necessity, but we must now accept that virtual trials will remain an option for many courts and judges because it works and makes sense.  

Atlanta Partner Chad Shultz and Seattle Partner Sarah Turner were interviewed by Bloomberg Law's Litigation Newsletter on this story.  To view this article, please click here. featured a version of this story in their Daily Report, to access that article please click here.  Subscription may be required. 

Chad A. Shultz
Sarah N. Turner