Michael Dockterman of Steptoe and Johnson. Courtesy photo Michael Dockterman of Steptoe and Johnson. Courtesy photo

Introduction

Facing renewed challenges from COVID-19 variants after reopening in parts of the country earlier this summer, courts once again must decide whether to try cases without full in-person attendance. In the case I just tried, a hybrid solution for court proceedings was smartly implemented by the Delaware Court of Chancery where the court suggested using a third-party technology solution provider to handle the logistical and technical complexities of a hybrid trial in a complex litigation matter. Based on our recent experience, the hybrid solution is a model for the future of complex trials.

Overview

In New Castle County, Delaware, I was the lead trial lawyer in a one-week complex trial before Vice Chancellor Joseph Slights. Our client, the plaintiff seller, sought specific performance from the defendant buyer who claimed it was excused from buying the seller's assets because the seller breached its representation to conduct the business in the ordinary course of business, which the contract defined as being consistent with past practices, during the first two weeks of the global pandemic. The trial was planned for in-person testimony in the courtroom, but a key witness expressed concern for his health if he had to travel to Delaware. With permission from the Court of Chancery, the trial became a hybrid-type trial where this key witness would testify remotely from New York while the court and authorized team members participated virtually from Delaware during his testimony.

COVID-19 Backdrop

The case was filed just as the pandemic spread across the country and moved quickly through remote discovery. With the trial looming, the Delaware Court of Chancery reopened and we were excited for an in-person trial with social distancing and precautionary limited attendance. The Chancery Court had adopted procedures for conducting remote trials in the pandemic but we really wanted to be back in the courtroom to be able to employ the tools of our trade. Just as we were gathering in Delaware, the Delta variant set in. We wondered if the trial would proceed and what kinds of restrictions on courtroom access we would face. Would the trial shift to being all virtual or would we be able to be in court for some of the work? With the limitations on attendance, how could we assure a "public" trial and how can we make certain that there was balance between witnesses appearing in person and the witness who would testify through video links? The court was willing to be creative and flexible, which put many options on the table. Dealing with the technical issues of a hybrid trial is not something we wanted to face. Lawyers are accustomed to using technology in the courtroom" but this is a step "beyond using technology to create a virtual courtroom and we did not want to divert our attention from the business at hand. At the same time, our client stakeholders were vitally interested in the proceedings and wanted to monitor them in real time even though they could not be in the courtroom. Fortunately for the parties and the witnesses who would testify live, the vice chancellor and court staff recently had implemented virtual access technology for trials through a third-party provider, CourtScribes. That made things easy for our team because we had worked with CourtScribes (and its predecessors) before, knew them to be innovators whose approach would make things easy and intuitive for the lawyers involved, and their track record gave our clients all the confidence they needed to move forward.