On February 11, 2021, the New York State Unified Court System issued Virtual Bench Trial Protocols and Procedures (“Protocols and Procedures”) in light of the ongoing Covid-19 pandemic.[1]  While “Virtual Bench Trials are, in all respects, identical to In-Person Courtroom Bench Trials[,]….certain modifications are necessary regarding the presentation of testimonial, documentary, and physical evidence in order to safeguard accuracy and ensure reliability.”[2] 

To that end, the Protocols and Procedures cover decorum, safeguards, public access, and pre-trial considerations for Virtual Bench Trials.  The Protocols and Procedures also include guidance on virtual pre-trial conferences, opening statements, exhibits, witness testimony, sidebar conferences, closing arguments, and records on appeal.  A Sample Proposed Stipulation and Order for Virtual Bench Trial Protocols and Procedures and a Sample Witness Inquiry are included as Exhibits A and B. 

The Protocols and Procedures also include considerations for criminal trials.  Exhibit C to the Protocols and Procedures is a Sample Defendant Waiver of an In-Person Bench Trial Form and Sample Waiver Inquiry and Consent to a Virtual Bench Trial for criminal trials. 

Judges are encouraged to select less complex cases, such as cases that “involve a single Plaintiff, a single Defendant, and a modest number of witnesses,” as candidates for Virtual Bench Trials.[3]  “Once a case has been selected for a Virtual Bench Trial, … “best practices recommend having the parties stipulate to the Virtual Bench Trial.”[4] 

The Protocols and Procedure also include a number of important practical considerations for Virtual Bench Trials.  For example, Virtual Bench Trials are conducted on the Microsoft Teams platform, and counsel are responsible for ensuring that the witnesses they call have access to suitable computer equipment. 

Practitioners should review the Protocols and Procedures for additional guidance.