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Law360 (March 30, 2020, 2:34 PM EDT )
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| David Conrad |
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| Jackob Ben-Ezra |
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| Steven Katz |
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| Susan Morrison |
This is not happening without some challenges, especially since shelter-in-place orders have confined many attorneys and judges to their home offices without information technology support. Here are some tips to help prepare and conduct remote hearings and still be an effective advocate for your client.
What Are the Available Technologies?
For better or worse, every single participant in a remote hearing is likely attending from their respective homes using their own telephone and internet connections, which is straining many residential internet connectivity infrastructures and telecommunication systems.
Beyond those considerations, depending on the type of remote hearing being held (e.g., audio-only or audio and video where just slides are presented visually) a significant cost of advocating remotely is the loss of the advocates' and judges' ability to perceive crucial nonverbal, visual cues that are present in conventional in-person hearings. Those who have participated in teleconference hearings in the past understand this. But some courtroom presentations necessitate more. Enter the videoconference.
Most courts do not have well-established information technology videoconferencing platforms to conduct hearings. Some courts have moved quickly to adopt specific systems for conducting videoconference hearings. Texas state courts, for example, quickly tested and adopted Zoom video conferencing as their default licensed platform. Other courts are working on an ad hoc basis, communicating with counsel to find a technology solution that works for everyone.
Available video conferencing systems include Zoom, Skype for Business/Microsoft Teams, Google G Suite Hangouts Meet, Cisco Webex meetings and GoToMeeting. Some platforms offer free versions, but there are often restrictions like the number of participants or time length. Many courts already have licenses for Microsoft Office 365, which includes Skype and Teams. Each of these platforms allows for screen sharing, which could allow for on-the-fly sharing of demonstratives and exhibits.
Some courts have not yet adopted specific video conferencing platforms and are requesting joint guidance from the parties on how to handle upcoming hearings. If there is an important hearing approaching on the calendar, parties should collaborate to work out logistical issues and jointly approach the court with solutions for how to handle.
Sensory Components of Remote Advocacy
Generally, like during in-person hearings, there are two components to a hearing, from a sensory perspective: (1) audio and (2) visual. Obviously, you cannot hold a hearing without the audio: The attorneys and judges talking are, arguing, admonishing, etc. There are important decisions to be made on this front, and these decisions directly impact the success of the hearing.
Audio
Where a remote hearing will be conducted with voice-only where no slides or documents are to be shown, the issues are simplified — you'll generally use a conventional teleconference bridge of the kind firms generally use to conduct business or meetings, into which all participants, including the court, can dial in.
While this medium of communication is not the polished one-stop shop approach provided by internet solutions like Skype and Zoom, an old-school teleconference bridge can help minimize risk of a participant's voice dropping out due to reliance on additional technology. Even if computer voice over internet protocol as opposed to mobile phone networks are used for such calls, there is no video component bogging down the transmissions.
Conventional teleconference bridges, however, are still vulnerable to problems during these times. The increase in remote work has caused problems with calls connecting, especially at the top of the hour when remote teams are used to scheduling meetings and everyone dials in. Thus, it would be best to arrange for parties and the court to join the call at an off time, like 10 minutes before or after the hour.
For hearings of substance, like a dispositive motion, or evidentiary hearings, voice is not enough. This is where things can get more complicated.
Visual
This brings us to the visual component. Besides demonstrative exhibits like PowerPoint slides, a crucial component is still the judges' and advocates' ability to perceive nonverbal visual cues. These are lost if only slides or documents are being shown during the remote hearing.
The first choice, then, with respect to the visual component is what to provide a visual of: namely, the slide deck/documents or the judge and attorneys' faces? The second choice is how that visual is going to be made available to the other participants. Can you show both?
With sufficient time and preparation, demonstrative exhibits can be provided in advance to the court, as in the past. Because judges may be at their home, physical distribution may not be practical. A court may arrange for demonstrative exhibits to be received by email the morning of or the day before the hearing. Courtesy copies could be exchanged with opposing counsel by email shortly before the time of the hearing, or possibly the day before as well, to minimize risk.
Sometimes, however, the course of an argument may require selecting and presenting documents on the fly. Exhibits to be used with witnesses also pose a unique issue, because effective advocacy may require a bit of surprise, such as when impeaching a witness. Although an exhibit set or witness notebook could be prepared, providing some documents in advance would not be preferable.
Fortunately, almost all videoconference solutions provide a mechanism for screen sharing. A participant can take control of the presentation and share what's being shown on their personal computer so that all participants (including the judge, law clerk and opposing counsel) can see what the presenter is sharing on screen.
Learn in advance how this works for whatever system will be used and how it will appear to other participants. Are you visible at the same time? Is the window legible? But remember, it is sending the documents in advance that will allow you to proceed if the video or screen sharing functionality fails.
Recommended Best Practices
Backup Materials
Technology can and will fail. Calls may drop. Video may be choppy. Audio may be garbled. Limit risk by reaching agreements with opposing counsel on procedures to submit and exchange information and materials well in advance. Therefore:
- All participants (court, including judge, law clerks, court reporter, courtroom deputy as needed; participating attorneys; and any witnesses) should have audio/video access details at least a day before the hearing to allow time for installation and testing of any software.
- Arrange to email the court a copy of any slides and an organized electronic notebook of any other documents/exhibits (with an index and/or exhibit numbers) the day before the hearing. Judges are beginning to require 24-hour advance exchanges.
- If the court does not require it earlier, email opposing counsel courtesy copies of any documents at the same time or at least an hour before the argument begins. Follow up after the hearing with the court and opposing counsel with any other materials that were presented on the fly.
Furthermore, make sure your internet connection is solid, with high bandwidth available. But do not assume that every participant has a reliable, fast internet connection at all times. Some people reside remotely, with lesser bandwidth available. Further, to the extent possible, use a hardwired internet connection instead of Wi-Fi.
It is very important to clearly identify any documents exchanged with the court and other participants. Use easily identifiable filenames (e.g., "DX-1_Document_Name.pdf") and a separate index to efficiently guide people to the correct document.
Within each document, make sure pages are uniquely identifiable by page number or Bates number. Ensure the numbers are very legible. Page numbers in slide decks are often neglected and may not be clearly legible or in large enough font.
And although this should be your ordinary practice, keep every page of a demonstrative exhibit simple and clear, with limited content in large format. Content will need to be legible on a small screen like a laptop or iPad.
Things to Say or Do Specific to a Remote Hearing
Probably the most challenging part of a remote hearing is the loss of strong nonverbal cues that help mediate the conversation between the judge and the advocates. Add in lag and latency in the audio or visual connection, and what you have is a group of people constantly talking over each other.
Since there is no sign-in sheet for the hearing, at the beginning, before going on the record, the court should help everyone to clearly identify themselves, for everyone's sake, including the court reporter. This is effectively performed when the judge acts as the emcee and requests identification in a specific order such as by first requesting counsel for plaintiff to identify themselves, who can then name who else is present for their side, then proceeding to defendants' counsel.
The court can further help by allowing for arguments to begin with an uninterrupted period of time for each party to make their points before jumping in with any questions.
Counsel should also periodically stop and affirmatively invite questions from the court before continuing with your argument. This is especially important if the hearing is setup such that the participants cannot see each other, but it still should be practiced in a videoconference hearing because latency may prevent visual cues from others from being in sync with your voice.
Be much more intentional than you typically would in clearly identifying which slide or which document and page number is being discussed at any given time. You do not want to drone on for a minute only to have the court interrupt and ask what it is in the materials that you were discussing.
It is also critical to assist the court reporter in that, every time you take the virtual podium, you identify who you are. Above all, speak very slowly and deliberately. A fast argument is a lost argument. The court reporter will not be able to keep up.
Witnesses and Exhibits
Hearings involving witnesses and exhibits should organically work consistently with everything discussed thus far. There is no need for a courtroom: A witness would be present via video, just like the attorneys and likely the judge.
Federal Rule of Civil Procedure 77, for example, contemplates this flexibility and states that except for trial any:
act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district.
Any hearing may be conducted outside the district if all the affected parties consent.
One difficulty in a videoconference with a witness is that he or she would need to join not at the beginning like counsel, but instead when they are called as a witness. The calling attorney should coordinate closely with the witness to ensure that they have the video and audio access links or dial-ins in advance of the hearing, that connections are tested and that they are instructed on waiting on standby, wherever they are.
When witnesses are called to the stand, so to speak, a short recess can be taken, and the relevant attorney can email, call or message the witness, instructing him or her that it's time to join the video/audio session.
Once communications are established and confirmed, the recess can end, and the court reporter can swear in the witnesses. While unconventional, they could be sworn in just like they would be in an in-person hearing, raising their right hand on video and taking the oath or affirmation.
Counsel should provide an electronic witness binder in advance to the witness, the court and all parties, indexed and with page numbers clearly marked.
Assume the Tech Will Fail
What can you do to minimize failure or disruption to the remote hearing? Layer the technology being used. Don't rely on strictly using a single platform or solution for the hearing.
Without audio, the hearing is done for. Home videoconferencing services like Zoom typically offer multiple methods for audio: either internet/computer audio or a dial-in number. For important videoconferences like hearings, consider choosing the latter. Using the computer's microphone and speakers uses the same telecommunications path as the video — if one fails, the other will too.
The provided telephone conference bridge, on the other hand, uses a different infrastructure, which has proven to be more reliable at the moment. And by following instructions on how to enter participant codes, the audio still syncs with the video, meaning that the videoconference app can highlight the video with the current speaker.
Conclusion
Remote advocacy is an imperfect alternative to a traditional in-person hearing. It will be frustrating. It will be unnatural. With people attending from their own homes, there will be surprise visitors like children and dogs. This is the new normal. Laugh it off, and move on.
David Conrad, Jackob Ben-Ezra, Steven Katz and Susan Morrison are principals at Fish & Richardson PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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