The New Normal: How to Conduct a Remote Hearing and Still Be Persuasive
Due to the COVID-19 pandemic, the legal system has had to make dramatic adjustments. Among these, some courts are conducting more proceedings remotely.
In the first two weeks of April, Texas state courts alone held more than 10,000 hearings through Zoom licenses issued by the Texas Office of Court Administration.
While some courts have not yet put remote systems in place, many anticipate they will in the coming days and weeks. In California, for instance, Tani Cantil-Sakauye, Chief Justice of the State of California, issued an order on March 30, 2020, that allowed court proceedings to take place remotely. Even the Supreme Court of the United States will conduct its May docket telephonically.
Many believe an increased reliance on remote hearings will become a lasting movement. Even if the reliance on virtual platforms doesn’t sustain beyond the pandemic, attorneys must now become proficient in their use of remote tools and resources, translate their abilities to persuade into the new virtual courtroom. This article provides tips concerning how to effectively participate in remote hearings.
Push for a Video Hearing.
A hearing held by videoconference is the next best thing to appearing in person. Some judges, however, order only telephone or audioconferences. Other times, opposing counsel will request only a telephonic setting. I believe this is in large part because lawyers and judges not familiar with videoconferencing platforms. Because your ability to persuade will be so greatly enhanced if the judge can perceive visual cues, I recommend you politely request a hearing by video.
If your judge does typically use video or teleconferencing, you may want to offer direct help in setting it up, and be sure to provide the judge with clear instructions on how to install and operate within it the platform.
There is no guarantee that the judge will agree to your request, but it would be foolish not to at least ask for the hearing to be held via a videoconferencing format.
Avoid missteps by, first and foremost, testing your system! Even if you are sure it works, test it 10 minutes before your hearing. Second, during the hearing, give the judge extra space around his or her words to avoid talking over him or her. Unintended cross-talk can be even more annoying to the court on video than it is in a live courtroom. Use the “mute” button when you’re not speaking, but make sure you have a fast trigger-finger for objections during any evidentiary hearings. Third, even more than in a live presentation, prepare what you are going to say. “Ums” and “ahs” can become particularly annoying to listeners when heard over an audio system. Besides, there is little excuse for a disjointed oral presentation, since you can have your notes in front of you as you sit at your computer. If you do use notes, don’t forget to continue to look up and make “eye contact” with your camera.
Properly Prepare for the Videoconference.
Should the hearing take place via video, you will have an opportunity to impact the judge through the visual aspect of your advocacy. In addition to bringing you and your witnesses’ nonverbal cues into view, a videoconference will allow for presentation of exhibits and demonstratives. There are ways to set up your presentation so the presenter is shown alongside the slide presentation; that way your audience will be able to focus on both you and your evidence. An experienced hot seat or trial presentation technician can be a powerful partner for this.
To prepare for the videoconference:
Well in advance of the remote hearing, ensure that all participants are given directions concerning video installation and access.
Set up your computer in a well-lit, quiet room, and make certain the background area the viewers will see is not visually distracting.
Limit the likelihood that pets, children, or other unexpected visitors or noises may interrupt the hearing. While working from home can be tricky these days, it’s important that the in-home hearing operates in as dignified a manner as if held in the courtroom. Interruptions from household members might not only impinge on the solemnity of the proceeding; they might cause its integrity to be called into question.
Test your technology system, camera, and graphics presentations.
Establish a “back channel” through Slack or Microsoft Teams so that you can communicate with your team during the hearing. (But don’t forget to ensure the notifications are silent.) Also, if you are using Zoom, you might request to take advantage of the “breakout rooms.” These are separate meeting rooms that can be accessed during the hearing but cannot be seen from the main hearing room, nor can these the breakout rooms be recorded or streamed.
Just prior to the videoconference, turn off unnecessary applications and make sure to silence your phone and other alerts.
Properly Conduct the Videoconference.
You have a lot to think about when presenting a hearing in a courtroom. Adding home technology to the mix increases the number of issues with which you must concern yourself. However, if you aptly prepare ahead of time, on the day of the hearing, you will be able to focus on your presentation.
In a companion article, my IMS colleague, Jason Barnes, outlines in great detail best practices for conducting a video hearing. I recommend you read his article. Below are just a few of the tips he offered.
Make sure you are dressed for the courtroom...at least from the waist up.
Establish upfront the agenda and protocol for when and for how long people will speak. As in the courtroom, take great care not to speak over others, and particularly, not over the judge. When you are not speaking, you should remain in mute mode, which means the microphone icon should have a line through it, indicating it is off.
Just like in the courtroom, maintain eye contact with the judge. In a video setting, this means you’ll need to straight into your camera, not your screen.
Slides capture the attention of judges and other remote hearing participants. It can be tempting for viewers to get distracted and check emails when a person is speaking. Using captivating slides and graphics will keep their focus on your presentation. Slides convey the important points of the case, summarize it, and provide an overarching view. Visual images, such as timelines, graphs, and charts, inspire interest, and enable information to be locked in viewers’ minds.
Check your local rules to ensure you meet any exchange deadlines for demonstratives. If there aren’t any, I recommend you ask the court coordinator or exchange any demonstratives with opposing counsel and send a copy to the judge in advance of your hearing.
Research Your Court’s Policies on Videoconferencing.
During the COVID-19 pandemic, justice still needs to be served. The courts are adjusting, and so must you. Like anything new, it will take some getting used to before you feel comfortable advocating over a virtual platform.