It was mid-March, and Exxon Mobil Corp. and the federal government were in the thick of a three-week bench trial in Houston federal court over how to split the $77 million cost incurred by Exxon to clean up water pollution dating back to World War II.
But as the parties were about to enter their final week of trial, the World Health Organization officially labeled the COVID-19 crisis as a global pandemic, and federal and local governments declared it a public health emergency. Trial matters hit a screeching halt as courthouse staff, lawyers and Houstonians alike were ordered to stay at home by local authorities.
Instead of waiting indefinitely to continue the trial in-person, U.S. Chief District Judge Lee Rosenthal of the Southern District of Texas and the parties decided to conclude it virtually from everyone’s homes, trading an “all rise” in the courthouse for a “join meeting” button each day on their respective computer screens. The parties completed the trial May 1.
The case signifies the beginning of what could be a new norm for bench trials, hearings and other legal proceedings as courts across the country start the dialogue of which matters will remain online and which will return to the courtroom in the post-pandemic world. It was Judge Rosenthal’s first virtual trial and is believed to be the first in the Southern District of Texas.
While the jury is still out on how Judge Rosenthal will rule, lead Exxon lawyer Ty Buthod already has a verdict in about his virtual experience: “I would absolutely try another case virtually.
“We made the best out of an unfortunate situation, but I would have no hesitation about doing it again,” said Buthod, a partner in the Houston office of Baker Botts. “Overall if this is going to be a new norm for bench trials, I think it works just fine.”
Judge Rosenthal also believes that the process went well.
“The bench trial worked very well, in part because the lawyers and witnesses were very good, and the exhibits could be effectively displayed while the witness was seeing and questioned about them,” the judge told The Texas Lawbook in an email.
“We are all lab rats in this experiment that has been thrust upon us,” she said, “with an obligation to figure out what works best now, and what we should keep doing in the future. That is a terrific challenge.”
The government’s lead lawyer, Department of Justice trial attorney Michael Rowe, declined a request for an interview, but a DOJ spokesperson said the virtual trial went “better than expected.
“We did a good bit of testing in the weeks beforehand, and it paid off,” the spokesperson told The Texas Lawbook in an email. ” Our problems with technology were generally minor and manageable. We were somewhat worried whether we’d have problems maintaining connections, but those didn’t materialize.
“Any trial lawyer would prefer to be in the courtroom, where witness demeanor is readily interpreted, and where you have a number of ‘being there’ advantages. Maintaining professional demeanor and recognizing that you’re in court, however virtually, is crucially important. Although this is a novel challenge, on the bright side it is an additional tool in whatever circumstances the courts ultimately decide are appropriate.”
Buthod said the court conducted the finale of the trial on the virtual platform, GoToMeeting. Except for one rebuttal witness, Exxon had closed its case by the time the trial resumed online, Buthod said. That left the government’s last three witnesses and closing arguments to take place on the platform. He said the screen always displayed the witness, the lawyer on each side responsible for direct and cross-examination and the judge.
One challenge Buthod said he and his team had to overcome was the increased difficulty of picking up on nonverbal cues by a witness during cross-examination over the internet. But he said overcoming that hurdle required the questioning skills lawyers should possess anyway.
“One of the things I learned is there’s no substitute for precision in your questions and insisting on precision in the witness’s answers,” Buthod said.
“We had good court reporters who did a nice job even though they had to take down a bunch of different voices from a bunch of different places,” he added. “It serves to impose more discipline on the lawyers because you really have to make sure your question is phrased how you mean it and the witness is giving an answer to the question you [are asking].”
Another challenge the virtual proceeding posed was the inability of Buthod to confer with the rest of the Exxon trial team (Washington, D.C.-based Baker Botts lawyers Dan Steinway and Michael McGovern and in-house Exxon lawyer David Mantor) in real time. In lieu of passing notes during a live witness (in hindsight, a luxury), Buthod said the team would get on the phone during each break.
In terms of how he prepared for the virtual leg of the trial, Buthod said the process was no different.
Neither were the key moments of the trial.
“The key moments are the exact same you’d have when you try a case in person: The cross-examination will reveal concessions from a witness that are far more important than what a witness would offer on direct examination,” he said.
He said the presentation of documents went smoothly. The only difference was the medium in which they were presented — screen sharing instead of an ELMO.
“I was very confident the virtual nature of the trial would not affect the ability to put on evidence,” he said. “As long as [Judge Rosenthal] was able to see the witnesses and the documents, I feel good about the fact that it was not different and not worse than had we been live in front of our fact-finder.
“If you read the transcript years from now, nothing about it will seem different because it was done virtually.”