Welcome back! Today, we present Part II of "Zoom Trials," a Q & A with Kristin Vivo and Mark Osherow. They discuss the pros and cons of Zoom trials, specifically the one in which they participated.Kristin Vivo: Mark, what did you think were the cons of having a nonjury trial via Zoom?Mark Osherow: It was hard to appreciate a witness’s reaction to certain questions making the process impersonal at times. I also found it harder to confront witness on the stand, as the platform creates a barrier that is not there in a “live” trial. But overall working with Zoom has a lot more positives than negatives. Working with exhibits and presentations and having the participants focus on what is right in front of them is facilitated. The platform also makes it easier in a business case to address specific language contained in a document as highlighting particular language and directing the court or a witness to particular section of a document is easy and the platform facilitates this interaction very well. Zoom also facilitates document comparisons and working with multiple documents at one time. You can tab between open documents in Adobe Acrobat and also set up the screen view to look at documents side-by-side and then also open another document that might be significant right alongside or over those documents. You can go back to the other documents with a simple click. This requires some training and practice. But this is amazing functionality. Practice with it and learn how to do these things in advance. As much as we tried, since this was our first Zoom trial, we had absorbed as much as possible in advance, but were continuing to learn while the trial was ongoing. At the beginning I did not know how to show side-by-side documents. But I learned; I watched a lot of videos in the evenings, to become more proficient. However, that proficiency might have become a bit zealous at times (think: like a virtual break-dance with the exhibits).Kristin Vivo: What do you mean impersonal? Their face was in the camera and so was yours?Mark Osherow: Yes, that is true, but for the witnesses, my concern was that the “intimidation” of the courtroom and the judge right there was not present. I am not sure this was a major factor, but it is indeed a concern.Kristin Vivo: I did not like the “IT issues” that may occur with difficult witnesses during depositions and trials. It has happened to me on more than one occasion that a difficult witness said he/she could not hear the question or was having IT issues. It is difficult to access if they are being truthful or simply trying to avoid a difficult question. Our trials and depositions in this matter, had an extra wrinkle in it because we had several witnesses that did not speak English, so we had to work with an interpreter. When these IT issues occurred, I found it helpful to ask the court reporter to repeat my last question, ask the interpreter to interpret it, then have the witness respond.Mark Osherow: This is all true but in the end the benefits are immense. We had witnesses and parties from other countries who were able to actively participate from the comfort of their own office or home. Most clients would prefer to testify via Zoom at home or from an office than in a courtroom. We did not have to leave home and stay in Miami for seven days either.Kristin Vivo: Very true! What else did you find to be a downfall?

Kristin Vivo and Mark Osherow

Thank you again to Kristin and Mark for allowing us to share this with you!