Malpractice Plaintiffs Ask to Project Family Members' Images on Courtroom Screens During Opening Statements and Closing Statements

No dice, says the trial judge; sounds right to me.


From Snyder v. Scranton Hospital Co., decided Thursday by Judge Terrence R. Nealon, Judge (Pa. Ct. Comm. Pl.)

Plaintiffs' motion … in this malpractice action … seeks leave of court to project plaintiffs' children and grandchildren via the Zoom videoconferencing platform on monitors and screens in the courtroom during the opening statements and closing arguments "in order to introduce all of them to the jury," to "allow [them] to observe opening and closing statements," and to enable "the jury to see and understand that Plaintiffs' family is close knit and supportive." Defendants oppose that request on the grounds that it "serves no legitimate evidentiary purpose," is "intended to inflame the jury from the outset of trial," and will "divert the jury's attention away from the facts and circumstances and instead engender improper sympathy." …

[Under the COVID social distancing rules, t]he jury's use of the gallery for seating deprives the public of its ability to attend trials in-person in Courtroom No. 1. To satisfy the constitutional requirements of public access to trials, special audio and video technology has been installed to transmit the proceedings into adjacent Courtroom No. 4 where they may be viewed on large mobile screens by socially distanced family members, friends, and members of the public…. [T]he jurors are advised during the opening instructions of the various measures taken to ensure their health and safety, including their socially-distanced location in the gallery which is customarily used by the parties' family and friends, and members of the public. Jurors are also informed that those individuals are able to view the proceedings on screens located in Courtroom No. 4, and that the jurors should not draw any conclusions or inferences from the fact that those individuals are not present in Courtroom No. 1.

[Plaintiffs seek] court approval "to project Plaintiffs' five children and several grandchildren on the video monitors and screens in the courtroom, via Zoom and without sound, during opening statements and closing statements." Plaintiffs submit that they "intend to do this in lieu of having all of the family members in the first row of the gallery as Plaintiffs' J counsel normally would in order to introduce all of them to the jury, and allow Plaintiffs' family to observe opening and closing statements."). They assert that "a large part of Plaintiffs' damages is the effect of [the male plaintiff's] inability to interact with his family members in the same fashion" due to his injury, and that their Zoom request will enable "the jury to see and understand that Plaintiffs' family is close knit and supportive of their father and grandfather."

Defendants counter that "Plaintiffs' request will produce no admissible evidence and will instead and improperly engender juror sympathy for the Plaintiffs before the first piece of evidence is ever introduced." They argue "that the virtual appearance of Plaintiffs' family members during opening and closing statements is improperly meant to constitute part of Plaintiffs' damages evidence," and "that Plaintiffs improperly confuse a video projection of Plaintiffs' family members during opening and closing statements for properly admissible evidence of Plaintiffs' damages in this case." Noting that "Plaintiffs are free to elicit testimony regarding the same during the trial itself," defendants maintain "that Plaintiffs' request serves no legitimate evidentiary purpose," is "intended to inflame the jury from the outset of trial," and will "divert the jury's attention away from the facts and circumstances at issue."

Based upon plaintiffs' proffered reasons for seeking to display their family members "via Zoom during opening and closing statements," their … request would create more problems than it would solve. If plaintiffs wish "to introduce" their family members to the jury, they may call them as witnesses at trial, or, if appropriate, seek to offer into evidence a day-in-the-life film featuring the male plaintiff's "inability to interact with his family members in the same fashion as he did before his arm was rendered useless." …

To the extent that plaintiffs seek to display their family members on the courtroom screens and monitors as proof that plaintiffs' "family is close knit and supportive of their father and grandfather," their requested ACT use would constitute improper opening statement and closing argument. Although the right to present an opening statement and closing argument in a civil case is part of the constitutional right to be represented by an attorney, the trial court is vested with the discretion "to regulate addresses by counsel to the jury." Our Supreme Court has stated that "'[t]he purpose of an opening statement is to apprise the jury how the case will develop, its background and what will be attempted to be proved; but it is not evidence."' "A party is entitled to argue the evidence during closing arguments, including all logical inferences," but "this latitude does not include discussion of facts not in evidence which are prejudicial to the opposing party." …

While it is true that "[i]n appropriate cases, counsel is permitted to use visual aids during opening and closing statements to assist the jury in understanding the evidence," the continuous display of plaintiffs' family members on the screen and monitors in the courtroom would not be a proper use of demonstrative evidence under the circumstances. The constant image of plaintiffs' family members, particularly younger grandchildren who may be more restless during extended opening statements and closing arguments, could serve as a distraction for the jurors and interfere with their ability to focus on the remarks and arguments by counsel….

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  1. In a general sense, I might disagree with Prof. Volokh here.

    In our system, the public is invited into the courtroom for various (good) reasons (ensure transparency in our judicial system, etc.).

    And with that comes whatever “influence” members of the public may have (the oohs and aahs, murmurs, outbursts, etc).

    In this case, if they are ONLY projecting the family members, then that would be undue influence and yes, should be denied; but if they project the entire gallery, then that should be OK.

    1. I would go further and say they *must* project the entire remote galley into the courtroom.

    2. According to the facts laid out above, there is no “entire gallery”. The “gallery” is distributed and unknowable. But in any event, what the plaintiff asked for was to display only the family members.

      And if you’re feeling especially cynical, you could infer from the “children and grandchildren” but not siblings that they intended to display only the young and photogenic family members.

      1. Yeah I think a smarter defense attorney might’ve asked to duplicate the normal courtroom scene as closely as possible by letting ANY viewers who want to share their camera streams be projected into the courtroom. Practically speaking, probably only family members want to do this, and you can now make the better argument about trying to make it as normal of a trial as possible.

    3. But, the reactions of the audience potentially influencing the jurors is an undesirable side effect of having a public trial. The purpose of a public trial, is transparency.

      I am not proposing this, but an argument could be made that an empty gallery and the public viewing the proceedings remotely is a fairer way to have public trials, as it eliminates the risk of the jurors being unduly influenced by spectators.

      1. Actual public present can guarantee “seeing it live”, which buttresses the “public airing of griveances” goal. Some should always be there to verify video feeds are accurate.

        I agree that none of this justifies the “jury gets to see reactions” argument, which has nothing to do with it.

        The goal was to prevent secret convictions and so on, under the banner of “trust us, the power hungry who lord over you.”

      2. Where I practice (New York) there’s no “gallery”. No one’s there except the parties. Judges don’t let in the public. They might let in family members if it’s a wrongful death case.

    4. I knew of an attorney who, more than once, would pay people who looked “less than upstanding” to go sit in the courtroom audience on the opposing party’s side during trial (most trials just have a few spectators), with the hope that jurors would associate the opposing party with a seemingly unpleasant or undesirable person.

      1. I would argue that your attorney was wasting his/her money because most jurors do not assume any connection between audience seating and the sides of the case. This is not like a wedding where there’s a bride’s side and a groom’s side. Family might want to sit close to a defendant but everyone else sits wherever looks the least uncomfortable.

        1. To be clear, LOL, it wasn’t MY attorney. Just a general practitioner (from the old school, when everyone wasn’t a specialist) I knew. While your point has some merit, I’m not confident that no jurors assume a connection between someone seated on the plaintiff or defendant’s “side” of the courtroom and at least support for that party, if not a connection. All it takes are a few jurors to have some transferred negative feelings. But maybe he should’ve hired them to go up and pretend to talk with the parties or attorney like old pals, while really just asking for directions to the restroom or complimenting the party or lawyer on his tie.

        2. I have certainly heard comments from jurors after a case about people sitting in the gallery who they assumed were connected to the defendant because of where they sat. It’s not uncommon at all.

      2. >> I knew of an attorney who, more than once,
        >> would pay people who looked “less than upstanding”
        >> to go sit in the courtroom audience on the opposing
        >> party’s side during trial
        Thank you for sharing. I LOVE that idea. That opens the door to a new career. Instead of Elvis impersonators, we could have Donald Trump impersonators, who could be hired to mingle with the crowd in many circumstances.

        1. Great idea! Have some guy wearing a MAGA hat sit behind the opposing party in a Seattle or NYC trial, and a lady wearing a BLM shirt sit behind the other party in a West Texas trial. Love it. We’re basically in Better Call Saul territory.

        2. Why not someone make a waft of cinnamon rolls while you’re at it. Studies show different outcomes depending on the hunger of those involvee.

      3. What “people” would have the time for such employment? Seems to me only the unemployed and bums would. In which case this is one way to reduce the poverty level.

  2. Will we learn that the reason Prof. Volokh’s recent contributions seem so disconnected from current America’s legal and political debates is that he, like soon-to-be-former Foley & Lardner partner Cleta Mitchell, has been misappropriating institutional credibility by working undercover for Trump Election Litigation–Elite Strike Force?

    1. With respect, you’ve become the mirror image of the DavidBehar guy. I think I’ll skip both of your comments from here on out. They are too predictable.
      I may not agree often with Sarcastro or Martinned, but at least I have to read their comments to know what they are saying at any given time, and they do make me think more often than not.
      There is no requirement to comment on every thread, or to put down the Professor every day.

  3. If they can point to family members sitting there during a live summation (and in New York they can), they can point to them on Zoom.

  4. The overwhelming majority of lawsuits are frivolous and lose in court. The defendant should be allowed to project the images of other patients to be deprived of care to enrich the plantiff lawyers. For example, most baby delivery wards in Philadelphia have been ruined and closed by frivolous litigation. Women are lucky to get hallway space in the ones that remain.

  5. At a policy level, torts have never improved safety, not one time. They induce cover ups and delay safety developments from technology. They destroyed manufacturing in this country. Why has the lawyer profession dealt itself immjnity, if torts improveknow nothing lawyers. a practice?

    Liability or immunity will shrink or grow an industry. Torts is an unauthorized industrial policy by unelected.

    I do support torts as an alternative to endless cycles of physical revenge that can make life unlivable. If we are to use torts for that benefit, all immunities must end, including the reversal of Hans, the repeal of the Eleventh Amendment, void for criminal fraud. Sovereign immunity violates the Establishment Clause being justified by the Sovereign speaking with the Voice of God.

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