Trials in the Age of Zoom
The COVID-19 pandemic has impacted empanelment of jurors and the presentation of evidence at trials. Courts in many jurisdictions across Texas and the United States have attempted to implement virtual trials, with Zoom being the most commonly used platform. But, what happens when technology interferes with effective questioning and selection of a jury or the presentation of evidence at trial? What can a party do?
One case which demonstrates the problem with Zoom trials is the case of Kinder Morgan Production Co. v. Scurry County Appraisal District. Kinder Morgan was a taxation case involving a dispute with the Scurry County Appraisal District. The case was tried in August of 2020, during the first wave of the pandemic. Kinder Morgan filed a motion for continuance based upon the medical concerns of its attorney, who had a doctor’s note stating that the attorney was advised not to attend trial in-person. The trial judge denied the motion for continuance and stated that the attorney could attend by Zoom, but that the case was going to move forward with the attorneys for the appraisal district and jury appearing in-person.
Kinder Morgan asked for relief from both the Court of Appeals and the Texas Supreme Court, who both denied continuance of the trial setting. The trial went forward with Kinder-Morgan’s lead attorney only participating by Zoom. During the trial there were numerous technical issues just during jury selection including: (1) three occasions with disruptive feedback; (2) twenty-eight instances when witnesses could not hear the attorneys; (3) four times when Kinder’s attorney could not see documents; and (4) thirteen times when Kinder’s lead counsel needed another attorney to respond to questions or objections. Following jury selection, Kinder Morgan again moved for a continuance based upon the technological problems using Zoom. The trial court denied the continuance. Kinder Morgan continued to ask for a continuance because of numerous technological issues which disrupted presentation of evidence.
On appeal the Eastland (Eleventh) Court of Appeals reversed the case and found that the technological problems of using Zoom resulted in ineffective counsel and deprived Kinder Morgan of its choice of attorney. The Court of Appeals held:
We recognize that the trial court and the parties attempted to establish a system through which KMPC’s lead counsel could participate remotely in trial…Nevertheless, that system, and the attempts to utilize it, simply did not work here. Even on a dry record, the voir dire, which is a critical phase of any trial, was clearly disjointed and lead counsel’s ability and attempts to communicate with and establish a rapport with the venire was significantly compromised…. Based on lead counsel’s inability to fully and effectively participate in the trial, and unique circumstances presented, we hold that KMPC was deprived of its fundamental right to representation by counsel of its choice.
The Kinder Morgan case is not before the Texas Supreme Court, which could reverse the Court of Appeals ruling. While it appears the courts are slowing returning to in-person jury trials, this case highlights the issues and problems when trying to conduct trials using Zoom or other technologies. It remains to be seen whether the Texas Supreme Court will use the Kinder Morgan case as an opportunity to set guidelines on how jury trials should be conducted in the age of Zoom.
The attorneys in our Dallas and Austin offices are available to answer any questions you may have about trials in the pandemic and post-pandemic era. You may contact us at info@gstexlaw.com.
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