At the beginning of the novel coronavirus pandemic, I published a vlog post with a recommendation to all of my lawyer colleagues: carefully document any issues that are affecting your representation of your clients during this disruptive time.
The reason for my advice was because, as an appellate attorney, I often deal with issues arising from a crisis several years after the crisis when a case affected by such an issue finally reaches the appellate level.
An example is when I handled dozens of foreclosure defense appeals in the years after the 2008 et seq financial crisis. In those cases, when I was searching for the best appeal argument I often found myself wanting to know exactly why a lawyer took one position or another or made one strategic decision or another. As busy lawyers know, it’s hard to remember the reasoning behind a decision taken a couple of years ago in one of many cases. Even when I asked the motion and trial court lawyers about their reasoning they often could not remember all the details.
So it hit me that the more the lawyer documents how a decision is affected by the crisis—such as the pandemic now—the better I will be able to understand the reason for a particular decision. And I put out the vlog advice to try to get ahead of the problem by telling lawyers at the beginning to keep careful notes throughout the crisis.
One issue that I am certain will come up a lot over the next few years is the effect of holding trials by Zoom (or another similar platform). Indeed, I recently came across the first appeal that I know of to address the issue of Zoom affecting a party’s right to a fair trial.
The case is Kinder Morgan Production Company, LLC v. Scurry County Appraisal District from the Eleventh Court of Appeals in Texas.
The dispute between the parties involved a complex tax issue that required a multi-day jury trial. The plaintiff’s lead counsel—who it chose based on his experience with the difficult legal doctrine at issue—was unable to attend an in-person trial in August 2020. The trial court refused to adjourn the trial to accommodate lead counsel. So the plaintiff’s trial team hired technology specialists to assist both in the courtroom and at the lead counsel’s office where he would be attending the trial remotely by Zoom.
Despite everyone’s efforts, the trial went horribly from the lead counsel’s perspective. There were repeated issues with the Zoom connection, and lead counsel was frequently interrupted from seeing and hearing everyone. His questioning of witnesses had to be turned over to co-counsel numerous times because of the difficulties. Plaintiff continued to seek adjournments of the trial because lead counsel’s participation by Zoom was not going well. But the judge continued to refuse.
A judgment was entered in favor of the defendant. The plaintiff appealed and raised, among other issues, the argument that the trial judge abused its discretion in refusing to adjourn the trial. The appellate court agreed, holding “the compounded problems that occurred throughout the trial resulted in a situation that became unmanageable” that “significantly overshadowed KMPC’s fundamental right to due process and representation by counsel of its choice.”
Duly noted. Good thing the plaintiff’s lawyers documented exactly how the trial by Zoom was affecting its right to a fair trial. I think the appellate court’s reasoning is one that we will see repeated across the country over the next few years, with many appellate attorneys like me raising the issue.
What issues have you and your clients been dealing with during the pandemic? If you want to talk to me about them, get in touch here.
