Trial News

In one of the first rulings to address the outcome of a remote trial during the COVID-19 pandemic, a Texas appellate court has overturned a defense verdict in a tax case that was plagued by technical difficulties. The court concluded that the repeated technical issues denied the plaintiff due process and prevented it from exercising its right to be represented by the counsel of its choice when its lead counsel had to appear remotely due to pandemic-related medical concerns. (Kinder Morgan Prod. Co., LLC v. Scurry Cty. Appraisal Dist., 2021 WL 6141114 (Tex. App. Ct. Dec. 30, 2021).)

When the underlying tax dispute went to trial in Texas, the court directed a verdict in favor of the defendant. The plaintiff appealed the judgment on several grounds, including that the trial court abused its discretion when it did not delay the trial after its lead counsel was ordered by his doctor not to appear in person for the duration of the COVID-19 pandemic due to medical reasons. Before the trial, the plaintiff requested a continuance on due process grounds several times, arguing that it had the right to be represented by the counsel of its choice and that its chosen attorney could not currently appear in court because of his doctor’s instructions. The court granted only one continuance request, based on a Texas Supreme Court emergency order that no trial could begin before Aug. 1, 2020, unless all parties consented, which the plaintiff in this case did not. The court denied subsequent requests and instead allowed plaintiff counsel to participate in the trial remotely. The plaintiff’s attempts for mandamus relief from the state appellate court and state supreme court were denied.

Jury selection and the trial proceeded in a local high school auditorium to allow for social distancing, and the plaintiff’s lead counsel appeared via Zoom, which was broadcast in the makeshift courtroom through a large video screen. His co-counsel and the defense counsel appeared in person. The plaintiff enlisted the help of outside technical specialists to assist at the high school and at the lead counsel’s location.

But technical glitches began during voir dire, with the record noting multiple audio feedback issues, dozens of instances in which someone could not hear or see someone else, and 13 requests from lead plaintiff counsel for his co-counsel to take over questioning the prospective jurors or to respond to objections. After voir dire concluded, the plaintiff again renewed its request for a continuance—and the hearing on this motion also was beset with technical challenges. Despite the plaintiff’s counsel arguing that the recurring technical issues compromised the client’s right to receive a fair trial, the court ruled that it would “not shut[] down the judicial system in Texas because of technology issues that we have dealt with, addressed, and largely overcome” and that it was proceeding as the Texas Supreme Court had envisioned in its emergency orders for conducting trials during the pandemic by switching to a larger location and allowing for virtual appearances.

Once the trial was underway, however, technical difficulties with the remote video platform and the audio system in the courtroom continued—from witnesses not being able to hear the lead counsel to his internet connection dropping temporarily. Eventually, the lead counsel had to turn over the questioning of witnesses to co-counsel. The plaintiff’s requests for a continuance were denied.

On appeal, the court recognized that “although a party’s right to counsel of its choice is not absolute, a trial court should not deprive a litigant of that right absent a compelling reason.” And a court does not abuse its discretion to move ahead with a trial if the party is adequately represented by another attorney associated with the case. However, the appellate court stated, accepting the trial court’s decision simply on the presence of co-counsel and the lead counsel’s attempted remote appearance “would be tantamount to ignoring what actually occurred during the trial.”

The court explained that the lead counsel had been retained specifically for his expertise in the area of law at issue and that technical difficulties beyond his control prevented him from effectively representing his client. The court also rejected the defense assertion that the plaintiff should have replaced the lead counsel because it had sufficient warning that his medical situation could prevent him from appearing at trial and had time to find a new attorney but did not do so. Instead, the court concluded that the plaintiff was “faced with enormous uncertainties created by and associated with a pandemic caused by a new and potentially life-threatening virus” and could not be faulted for retaining its lead counsel under “the very limited and compressed timeframe” that had been allotted for trial preparation.

Ultimately, the court determined that although the trial court and the parties tried to adjust to the situation and find a way for the lead counsel to participate, it simply did not work. The continued technical issues beginning with voir dire—which the court characterized as a “critical phase of any trial”—deprived the plaintiff of its right to be represented by the counsel of its choice.

Finally, the court concluded that the trial court’s continued refusals to stop the trial amounted to an abuse of discretion. Its justifications for moving ahead—that it did not want to shut down the judicial system and that the trial was an “experiment” for the court administrative office to see the pros and cons of conducting a jury trial during the pandemic—were not sufficient. The trial court’s stance, the appellate court said, “failed to recognize that by not adjourning the trial, at least until the technical difficulties could be resolved entirely,” forced the plaintiff “to be a participant in a failed experiment”—thereby denying the plaintiff due process.

As the appellate court noted, the Kinder Morgan case is a particularly egregious example of what can go wrong in a remote trial. But courts and attorneys nationwide have had to adjust to virtual hearings, depositions, and trials during the pandemic and have learned lessons from the experience. Miami plaintiff attorney Curtis Mase, who conducted a maritime trial over Zoom, said that preparation and asking a lot of questions ahead of time was key. “With the exception of a few minor, technological hiccups, we found it to be an effective and cost-efficient way to do a bench trial. Before the trial, we asked questions about how to enforce the rule of sequestration, how to present and share trial exhibits, and how to refresh a witness’s recollection when you are not in the same room. All of these issues came up in the trial.”