Practicing Law in the Virtual World

Over the last three years, attorneys and judges were forced to practice law in the virtual world.  Given the onset of the COVID pandemic, along with advancements in technology, the legal industry has officially embraced a digital practice. While some things are here to stay, certain aspects of practicing virtually may not linger forever. In the latest episode of The Garden State Law Podcast, join Saiber litigator Marc Wolin as he discusses his experience of a remote trial and practicing law in the digital age.

What is The Garden State Law Podcast?

The Garden State Law Podcast discusses all things legal in the state of New Jersey. Presented by lawyers from Saiber LLC, the Garden State Law Podcast highlights trending topics in litigation, transactional law, real estate, and more.

Welcome back to the Garden State
Law Podcast.

I'm your host, Tim Lough.

Joining me today is Saiber partner
and commercial litigator Mark Wolin.

Mark, thanks for joining
us. Thanks, Tim. Appreciate it.

So say we're going to be focusing on
something

that I would consider
to be one of the most impactful things

that have happened to the legal industry
in really several decades.

The long term
effects of COVID 19 has forced

really all firms and companies
in all industries to kind of pivot

and end up being a little bit more virtual
than they ever expected.

And I think that's something
that lawyers are adjusting to,

and we're kind of learning as time goes on
how to operate in a more virtual world.

Before we get to the topic, Mark,
maybe you can take a second

and introduce yourself and your practice.

Thanks, Tim.

As Tim indicated, my name is Mark Wolin.

I'm a commercial litigator.

I do basically commercial, all kinds
of commercial and complex litigation.

And I'm a certified mediator
for both the United States

District Court for the District
of New Jersey and elsewhere.

And I also spend maybe some of my time,

20% of my time or so as a trustee.

So I thought you would be
a really good person

for this conversation,
because I look back now

a couple of years ago
and I think about how you were

and I remember how you were one
of the first people as a firm to conduct

a substantial legal proceeding virtually.

And I remember the
the logistics that went into it.

I mean, the whole kind of firm knew
what was going on.

There was the space
that was separated for you.

And there's a lot of people involved.

And it was the first of its kind.

And it was clear that everyone was kind
of learning how to do this on the fly.

And it wasn't just you.

Is the entire industry
who is learning how to

conduct a business virtually.

So I kind of wanted to start there.

When you think back at this trial,
or bench trial, that you had, this was,

I guess in 2021, maybe less than a year

after the pandemic began.

What leading in to the
this trial is a legal proceeding...

Any legal proceeding
was your approach different?

How did you prepare?

What was the difference in preparation
and what was the preparation and approach

like when you said, okay, I for 30 years
have been conducting trials in court

and now I'm going to be doing it
in our conference room.

How is your approach different
than it had been in the past?

It was the same in many ways,

and it was different in many ways.

With regard to trial preparation,
you still have to get

your documents in a row.

You still have to prepare your witnesses.

You still to prepare
for cross-examination.

You still have to do motions and eliminate
all of the things that would go along

with a regular trial.

But on top of that, there's all of...

there's a mountain of logistical issues
that we had to confront that

you never even think about when you're

doing a trial in the courtroom.

So let's talk about
some of the logistical issues. So

technology is a big

component,
and I think we'll get to that in a moment.

But beyond just the technology
perspective,

what sort of logistical hurdles
did you have to cross?

I mean, I think there's procedures.

I mean, you had mentioned to me
that we went through a kind of procedural

checklist at you in there
opposing counsel with the court itself.

We'll get to the the
the cameras and zoom in a moment.

But what other logistical issues
did you have to confront?

Well, the the cameras and

and sound
and acoustics are all part of it,

because when doing a remote trial
like we did,

we did a dry run
just to see how things would look.

And there are things that occurred
that you would never even anticipate.

We were sitting in a lighted
conference room that looked just fine.

We had a witness
there who was wearing glasses

and to the naked eye they were clear,
but there was actually a fine tint there.

Well, the way it showed up on Zoom was
his eyes were completely blacked out.

And it's like,
all right, we can't have that.

So we had to spend

like half a day fiddling with the lights,
trying to get the light just right.

So the face, the witnesses
face wouldn't look washed out.

Or you could or you couldn't
see his eyes, things like that.

And even with that,
we couldn't get it to be just right.

So we actually had to run to BestBuy
to buy a lamp.

And and, and once we had the lamp,

the the video aspect of this worked fine.

So, I mean, that's just an example
from the sound

from how you

present documents to the witness,

the logistics of where
the witness is going to be.

It's all different
than when you're in a courtroom.

Ok, were you in the same...

You know, I'm
I'm thinking about our office space.

Were you all in the same room
at the same time?

Did you have breakout rooms of sorts?

How did you manage,
you know, where people needed to be?

I would imagine at times

people need to be separated
from each other and the judges on screen.

But you needed someone in one room
and you were in another room.

How was. That?

Yeah, well, this was one of the things
that I had discussed at length

with my adversary, who,
you know, was anxious to discuss

these as well, because we both were
confronting the same set of issues.

So we actually got together ahead of time
to sort of

put together
protocols of what we would do.

And as to witnesses specifically,

the rule for both sides was the witnesses

would be in a completely separate room
from where the attorneys were

when they were testifying.

So there would be nobody else in the room,
no hand signals, no

no sliding of notes,
no holding up cards, anything like that.

So the best way to do
that was to just put the witness

in a completely separate room
from where the attorneys were.

And after the witness was done testifying,
then he could come into the regular

or she could come into
the regular trial room

where the proceedings
were being conducted.

But while they were on the stand,

they were in a separate area
where nobody else was.

And that was the same for both parties.

So you mentioned the protocols that you
had put together with opposing counsel.

Was that something that you did
proactively, the two of you,

or is this something that the court kind
of maybe not mandated but,

you know, called you and said
we need some sort of order to this?

How did that work out?

You know, I would imagine that the court
was as unprepared to deal

with this as anyone else.

How did the development
of putting together these procedures?

Because you actually showed me
your procedures.

It's extensive.

It was well thought out.

I mean, it was comprehensive.

What was the genesis
of putting this together?

Well, we had an initial conference with
the judge who was assigned to our trial,

and we just had a very quick conference
with him

subject
to further conferences down the road.

And one of the things that naturally got
raised during the course of this was,

Your Honor, are there any protocols
or how how does this work?

Because neither of us, neither myself
or my adversary, had ever done it before.

And the judges, like, I don't know.

I've never done it before either.

So that realizing that we were sort
of working on a blank slate.

One of the

things that we discussed with
the court was maybe opposing counsel,

and I would get together
and see if we could

sort of put a list of things,

protocols and steps that would be amenable

to both of us and present them
to the court for consideration.

And the judge was like,
Great, go ahead and do it.

So we my adversary and I didn't
sit down together because it was COVID,

but we had a we had a conference call,
an extensive conference call

where we just sort of went through brain,
you know,

brainstorming different kinds of things,
like, you know,

putting the witness in a separate room,
the lighting.

What happens if there's a technical snafu?

How do you do?

How do you present documents
on cross-examination?

I mean, all these different things
that come up during trial

that you never think about

when you're in a courtroom,
that you now have to deal with differently

when you're doing it remotely.

And so we ended up putting together
like a three page

document of protocols that we agreed to

and then we sent to the judge
for his blessing.

Was he just accepting of these protocols
or did

they come back and say, yeah, I like this,
This was well thought through.

Very good. Man,
not that, let's change this.

How much back and forth or was
he kind of “sounds good to me.” It was...

he actually was
extremely complimentary of us.

He thought they were great fact.

I recalled their our conversation he said
“do you guys mind if I circulate this

to the other judges?”
Because nobody had really done it before.

And this was early 2021, correct?

Yeah, we...

our trial ended up being in June of 2021,

but the protocols were put together
probably

in late February or early March.

So it was literally
just a year into the pandemic.

So you had worked
with the opposing counsel

seemingly a lot more than you
normally, well,

from my perspective, more than you
normally would have on a regular trial.

How important was having
a good relationship with him or her

leading up to this?

Because it seems like
you really need to be on the same page.

And had you not been,
it would have been just another level

of frustration and,
you know, communication.

And, you know, I would imagine that

having a good rapport
with this person is paramount

to making this work,
especially for the first time.

Absolutely. And

my adversary was,
first of all, an experienced trial lawyer.

So he had he was not new to the game.

He was new to COVID like we all were.

And so he was very in tune, as I was,
with what

we have to do
to make sure that this runs properly.

So he was more than willing
to have a discussion.

As I said, our conversations
in this regard were very productive

because whatever procedures
we applied applied equally to both of us.

So we both wanted to make sure
that it would

work, you know, for whatever
we wanted to do at trial.

And was there a production
I mean, us sitting here right now

doing this podcast,
we have a production team

that we're working with
and everything is kind of set up for us.

At that time was there any of that
or was this Mark Wolin,

the same sobriety team
and we were making this work on the fly?

Well, I guess I'd like to say the Saiber
IT team was the production unit.

Yes, kudos to them.

So we what we did at the

time was, again,
I wanted to make sure that

separate apart
from the merits of the case,

everything ran seamlessly
so you could see the witness,

you could see the documents
that we were showing as exhibits.

You could...

the acoustics were good.

There was no audio feedback.

I mean,
all of these kinds of things that we had.

We had

set up computers in different rooms
and TV screens

in different rooms
to accommodate all of this.

And that part, you know,
took a large chunk of time because

it's again, independent of the preparation
of the actual trial itself.

It's just the mechanics of it. Yeah.
And you're in you're learning it, too.

It's not just kind of doing it,
but you're learning from scratch.

So I guess that brings me to my question
about really Zoom

and some of the challenges
that you had dealt with.

Now Zoom, in 2019
was this thing that I think

I had a username and password
and maybe I used it once or twice.

I remember working with our web developers
who host our Web site

and it was probably in 2019
and he sent me a link to a Zoom.

And I wasn’t on camera because I didn't
have a camera on my computer at that time.

But he did and I was thinking “wow,

this is this is cool.” I know,
why don't we do this more often?

Little did I know a year later
that we would be kind of bound to Zoom

or (Microsoft) Teams
or whatever we're using now.

But what were some of the things
with Zoom and video

that you found interesting or challenging?

And I mean, for example,

I know that well,
now I'm not a practicing attorney myself,

I've seen enough movies
and I know enough to know

that there's sidebars that happen.

And you say like, okay, well,
let me talk to Judge for a moment.

Let me pull this aside.

So just the two of us are communicating.

How did how did that happen on Zoom?

I imagine there's
some sort of breakout rooms.

But again, I would imagine
this is all detailed in your protocols.

But what was that like?

Well, actually,
it wasn't in the protocols. But

what we ended up doing,

I mean, often during trial,
someone once introduces a document

and somebody objects
in the use of the document,

whether it's a portion of it
that is confidential or whether it's

irrelevant to the issues of the case,
whatever the objection may be.

And normally during trial,
there would be a sidebar where the lawyers

just go up to the sidebar
out of the earshot of the witness

and we will

discuss and argue their relative positions
before the judge will make a ruling.

And then the judge will make his decision.

And then you just proceed.

In the in the zoom world or any video

type trial, it's different
because you're not all physically there.

So to do a sidebar, what we had to do
was to get the witness out of the room

into a conference room, so to speak.

And so whenever there was an objection
like that, the judge would contact

his courtroom deputy who would then
come in and be the technological person

to remove the witness from the room
and put them in the conference room.

So there's a deputy with you
and then another deputy.

No, because the witness is sitting,

I mean, it's all technically over Zoom.

So he just would have to put the witness
into a Zoom breakout.

Not physically.

You know, logistically.

So he would like turn the audio
and video off for that witness.

So when we're arguing

or discussing whatever the objection
was, the witness couldn't hear anything

and there was a time delay in that,
because by the time the judge

got his courtroom deputy

to put the witness into a breakout room,

that was a couple of minutes, you know,
and then we would go through and argue

whatever we were going to argue
about with the judge.

And then when the judge
would make his ruling and then he would

get the witness back,
it was another couple of minutes.

So usually what happened
is the sidebars took longer,

substantially longer than I think
they would during a regular trial

just because of the logistical issues
and it was actually a funny

thing that happened

for one of the times when I was examining

one of the witnesses,

my adversary made an objection.

We did the whole process.

At the end of the process as the judge

overruled the objection and he said

and then brought the witness back in
and then said, Counsel, go ahead.

He told the witness
the objection’s overruled.

Counsel Continue. Ask your question again.

And now this had been like a ten
or 15 minute gap

since I asked the question and I couldn't
remember what the question was.

And if anyone's ever watched
The Honeymooners with Ralph Kramden,

I have a sort of like, “humina, humina,
humina...”, and just trying to figure out

where was I and I was like, Your Honor,
can you indulge me for a minute?

And I'm sort of like trying to find out
exactly where I was

because of the time lapse.

And finally the court said to me, Mr.

Wolin,
I think the question was such and such.

And I was like,
yes, that's exactly what it was.

And then it brought me all back on track.

And then and then I was able to proceed
from there. But it was

a moment of panic

because I just couldn't remember

the exact question

or argument that we had just resolved.

So that brings me to the court reporter.

Is there a court reporter
in these virtual trials or no?

As I learned, the hard way,
the answer is no, clearly not.

Because the first thing I said when
the judge said, ask your question again

was, Your Honor, may I have the court
reporter read the question back?

And he's like, Mr.

Wolin there is no court reporter.

We are recording all these proceedings,
but there is

no one physically in the courtroom.

So that was something
that was significant.

And I think
if I ever had to do another one,

I would have my own court reporter,
not for purposes of creating a transcript

that would be used,
but for scenarios like that where

you can't relate back to anything and

and to try to find out
exactly where you were,

what you were doing, it would,
it would just make life a lot easier.

And that's something you never realize
until you do it.

You never think like, okay, I'm
I'm going to be without a court reporter

and I'm going to have to lean
on something else

you don't know
until you're in the middle of it, Right?

There was never a discussion
beforehand of whether or not

there was going
to be a court reporter. And

no. So I, I

did not know until we actually encountered
that situation.

And then I was like, okay, off
to jot that one down for the next time.

And so with that being a snafu
that you kind of learned on the fly

and thinking about all the
the breakout rooms

and technology
and I've been doing this now

for things virtually for a couple of years
and still seeing two,

almost three years later
the technology snafu.

So we have where there are many technology
hiccups along the way

or just felt like it went pretty smoothly
once you put in the legwork.

For the most part, it was it was smooth.

At various times the judge would start

speaking about something,
but he was on mute.

So we'd all be like waving at the judge.

It's like, right.

And it's this international side.

Right? Right.

So or there were times where

the judge's

microphone was still on
and it would create feedback or

or one of our microphones
is on when we shouldn't be doing something

that was creating feedback.

So but that was really small.

There were a handful of minor things,

but it was really not a distraction
at all to the trial.

It was just like, I guess what you would
say, it's an occasional hiccup,

but it didn't delay anything
and it didn't really have any impact on

the trial itself.

I think it probably speaks
to the preparation that went into it.

So to you,
what are the significant differences

between, you know, any legal proceeding
virtually and doing it in person?

Are there dramatic differences
or what would you point to?

There were a couple.

One I've already talked about
was the breakout and, you know, sidebars

was very different
than you would see from a normal

trial.

Another one that was very different

was cross-examination.

In a normal in-person trial,

when you are cross-examining a witness
and you have a document

that you want to use,
you have three copies

and you say, Your Honor, I'd like to have
this marked as rebuttal exhibit one.

And I want I have a copy for the witness.
I have a copy for the court.

I have a copy for my adversary.

You hand them all out and then you begin.

In the remote world it's hard to do that

because you're not physically there,
so you can't hand something out.

And unlike exhibits that you use
on your direct case, cross examination,

you don't have to give notice
to the other side of what

documents you're going to use
to cross-examine the witness.

So you sort of
have to make plans of how to do that.

And so one of the things

that this was part of the discussion
I had with my adversary,

that if either one of us
were going to have cross-examination

exhibits,

we had to make a procedure
to deal with that.

And essentially
they were sent to the judges, law clerk

beforehand so the judge wouldn't
have the opportunity to see the documents

until we use them,
because we may use all or some

or none of them based upon
what the witness said.

So we didn't know,

but we had to send a list of them
and the actual documents there.

So at trial when we used one,
the judge would be able to physically

look at the document.

At the same time when we introduced it,
when we said, we want to do this,

I had someone with me who would send
the full document to my adversary

via email so he could look
at the whole document that we were using.

And then we would also have the document
put up on the screen.

So the witness could see it.

So that that was a more cumbersome process
than what you would normally do.

But I think
once we put the procedures in place,

it didn't really have an impact
on the flow of the trial.

So that that worked well.

And and one

the last thing I would say
to your question, which I thought

was interesting, another thing
I did not think about ahead of time

was for purposes of a bench trial
where the judge is the finder of fact.

I thought a Zoom trial in some respects
was better than an in-person trial,

because in an in-person trial,

the witness is sitting
to the judge's left.

And so when the judge
is looking at the witness, all you get

is a profile view.

When you're on Zoom,

the witnesses face is on a big screen
right in front of the judge.

And, you know,
one of the things that finders of fact

always do
are make credibility determinations.

You've got conflicting testimony.

You ultimately have to determine
who's more credible and whatever.

And I think having the witnesses face
right in front of the judge

and you can see someone sweating

or someone is cool and calm and collected
or whatever

made made an impact.

And I and I think in
some respects is better

than when you're in a courtroom
because the judge really

can't get that point of view.

So to make sure to have a high definition
camera so you can really get a good, good

read on the person. Yeah, Yeah.

So looking forward

in the next couple of years

because I think now
we're dealing with years and not once.

I remember when COVID first began,
it was, well, you know,

the next six months
and then nothing really changes

and you kind of shift to, well,
the next few years.

How do you see

virtual trials,

virtual legal proceedings in general

shaking out over the next couple of years
and specifically in New Jersey

because I think it's well-documented that
there is a judicial shortage right now

and that I would think
this would be a benefit to the judge

because they could probably get
through things a little faster.

Where do you see this leading in the next,
let's say, five years?

Yeah, I obviously can't say for sure,

but if I had to place my guess,
there's a lot of things that happen

on a regular basis
that we used to have to go to court for,

whether it's initial scheduling conference
or a settlement conference or

arguing a motion,

whether it's a discovery motion
or a summary judgment motion.

And those

have been, in my experience, almost done

exclusively via Zoom
since the pandemic began.

And in many respects,
they're more efficient because sometimes

for an initial conference,
you're with a judge for

10 minutes, if that much and

but you have to spend 40 minutes
driving there, parking, whatever.

There's a whole list of other lawyers.

They're on other cases.
And you have to sit around and wait.

And in this respect,
it was it's a lot easier.

You have a specific time.

You dial in, you have your ten minute
conferencing, you're done.

And frankly, I don't see that changing.

There's really no need for that.

There are there are certain benefits
for sure, of having

certain proceedings in person.

But I think a lot of the things
that we found out we could do via Zoom

during the pandemic will continue.

Trials are a different animal,
especially jury trials.

There's been some documentation
about jury trials remotely.

They were more favorable to jurors

because jurors could do it
from the comfort of their own home.

They didn't have to spend all the time
commuting.

They didn't have to, you know, sit
in a locked room, you know, to make sure

that they weren't talking
to anybody else, things like that.

But I just think logistically,
it's harder to do.

And I would guess someday
when we're past the pandemic

and the court shortages and whatever,
that probably jury trials would

at least begin to be back in person

and even in even bench trials
notwithstanding the fact of, you know,

four credibility determinations,
I just still think

sometimes it's

better to be in person to do it
than than to do remotely.

So, yeah, there's a real life element
that you just don't get that

I think to a certain extent
is needed in this type of thing.

Yeah, it's it's
hard to quantify or put into words,

but I think I think there is a benefit to
it being in-person.

Well, thank you Mark.
I really appreciate it.

If you'd like to contact Mark directly,
you can reach out to him

at 9736228401.

Or you can email him at [e-mail].

Thank you for all those listening
and watching.

We'll talk to you next time.