'Guinea pigs': How Honeywell won nation's first Zoom asbestos trial
9/18/20 Jenna Greene's Legal Action 18:51:36
Copyright (c) 2020 Thomson Reuters
Jenna Greene
Jenna Greene's Legal Action
September 18, 2020
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(Reuters) - Before Honeywell International Inc was forced to participate in the first asbestos jury trial via Zoom in the United States, company lawyers warned of a parade of horribles.
"Serious problems" with voir dire and juror deliberations were sure to happen, they argued in an emergency appeal to California's First Appellate Division, not to mention "inevitable technical glitches" and user error.
Overall, they said, it would be "impossible" for Alameda County Superior Court Judge Jo-Lynne Lee to oversee all the participants effectively, or to conduct the trial without "sacrificing all semblance of fairness."
Honeywell lost the appeal — but won the nine-week trial. Earlier this month, 12 virtual jurors rejected a $70 million claim by plaintiff Ricardo Ocampo. A janitor at an auto dealership, Ocampo blamed asbestos dust from Honeywell's Bendix brake pads for his peritoneal mesothelioma.
I had a chance to catch up with Honeywell counsel Ricky Raven, a partner at Reed Smith, and David Ongaro of Ongaro PC. I was curious: Now that they had the win in their pocket, had they become converts to litigating via Zoom?
The short answer: No.
Ongaro compared the experience to "trying the case in the dark," deprived of all the non-verbal juror cues that skilled trial lawyers use to hone their arguments.
Raven agreed, noting that virtual jurors "don't have a real rapport with the lawyers or each other," he said. "There are real Seventh Amendment issues with Zoom trials. A public trial means just that — you go to the courthouse and prove your claim."
But in the age of COVID-19, going to the courthouse is vastly more difficult. In-person, socially distanced trials might be feasible, but criminal cases are likely to take precedence — and rightly so.
Bench trials could also be an option, but that would mean putting all your ($70 million) eggs in a single basket.
What about just waiting the virus out?
Well, the director of the Centers for Disease Control and Prevention on Sept. 16 told members of Congress that "we're probably looking at late second quarter, third quarter 2021," before a vaccine is widely available and "regular life" will resume.
That's a long time to put off your day in court.
For all their flaws, virtual jury trials might be the least-bad option. But how in a practical sense do you actually try a case via Zoom?
Raven and Ongaro walked me through the logistics of putting on their case, which kicked off in mid-July. "We really didn't have any playbook or other [Zoom] proceedings to look to," Raven said.
Or as Ongaro, put it, they felt "like guinea pigs."
Plaintiffs lawyer Peter Beirne of The Paul Law Firm in Los Angeles did not respond to a request for comment.
At the outset of the case, the jurors who were summoned were all given a Zoom number and password and instructed to log in using their own devices at an appointed time.
Raven said this was not a problem. Then again, Alameda County, which is located directly across the bay from San Francisco and includes the University of California at Berkeley, Lawrence Livermore National Laboratory and the Tesla headquarters, may have an unusually tech-savvy population. Still, who doesn't have a smart phone these days?
When the jurors were selected, they were provided with laptops (configured to allow access to nothing but Zoom) and set up with Wi-Fi hotspots.
This system worked most of the time, but connectivity issues "were always a challenge every step of the way," Raven said.
The eight-person Honeywell trial team kept things old-school in one regard: They all stayed at a hotel in Oakland about nine blocks from the courthouse for the duration of the trial. "We were a Honeywell bubble," Ongaro said, adding that this in-person interaction and brainstorming was key to their success.
The defense team litigated from a conference room in the hotel, where they set up a podium — not that it mattered on Zoom, where jurors only saw the speaker's head and shoulders, but it provided a familiar setup for the lawyers.
They also took great care with the lighting (tip: position a light source in front of the speaker to avoid backlighting or shadows) and to create the right neutral background. They also realized their laptops couldn't be too close together or the sound would reverberate.
Also key: The defense team rehearsed extensively pre-trial to make sure they'd mastered the technology. As Raven noted, jurors may "perceive a lack of technical knowledge as not being in command of your case."
The team assigned one member to do nothing but watch the jurors on Zoom — to gauge their reactions and make sure they were paying attention. With the exception of an alternate who dozed off and was excused, the jury was laudably attentive, the lawyers said.
The jurors deliberated for a day and half before reaching a unanimous verdict for Honeywell, though Raven noted there was "no way to ensure they all deliberated together, or if one juror might say 'You all keep going, I'm going to get a sandwich.'"
"Regardless of whether we won or lost," he said, he remains skeptical of virtual trials. "I don't think [litigants] ought to be in the position of compromising their constitutional and due process rights."
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