That’s the question posed in this excellent article from Law360. A snippet:
Lawyers who engage in virtual trials need to anticipate that eventuality and do everything they can to minimize errors that can occur because of technology, as well as preserve their objections properly and quickly during virtual proceedings, [attorney Carl] Guthrie said.
“We should always be one step ahead and prepared for what happens … if an appellate court does look at it,” he said.
Courts that have been broadcasting their proceedings usually include a warning that recording is prohibited, but those warnings aren’t always heeded. One example is the recent viral video of the lawyer who was unable to remove a cat filter and told a court, “I’m not a cat.” The video preserving that moment included in black and white font a prohibition against recording.
But more broadly, Guthrie said that in virtual proceedings, evidentiary gaffes are some of the easiest to make — and can be the most damaging. Accidentally showing exhibits to jurors before they’ve been admitted by the judge, for example, is an easily reversible error, he noted.
Virtual hearings and trials are assuredly here to stay, at least in some form, after the pandemic subsides. It’s good that lawyers and judges are getting out in front of these issues.