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Law360 (September 14, 2020, 4:10 PM EDT )
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| Nicole Gueron |
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| Melissa Holsinger |
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| Muriel Leung |
We recently completed a complex arbitration conducted entirely over Zoom because of the pandemic. The three-week hearing took place before a panel of three arbitrators, included an evidentiary record of over 300 marked exhibits, and required testimony from more than a dozen witnesses.
Adapting traditional in-person methods of presenting evidence to a remote hearing setting can seem daunting, but with a little creativity and a lot of practice, it is entirely manageable. This article sets out some of the best practices we used.
Before diving into our specific suggestions for handling evidence in a remote proceeding, we must note that these suggestions are geared toward publishing trial exhibits via Zoom's share-screen function, which allows a user to share all or a portion of her computer screen with others in the Zoom meeting.
When using the share-screen function, the publisher can choose to share her computer's entire desktop or a specific application, such as Microsoft Word, Excel or Adobe Acrobat. Alternatively, your team could use a specialized exhibit display platform, which can also be shared via Zoom share screen.
We chose to stick with applications that were readily available and familiar to us from our everyday practice, including Adobe Acrobat, which we used to display the majority of our exhibits.
1. Agree with opposing counsel on as many exhibits as possible, as early as possible.
No matter how contentious the dispute, it will simplify the process for everyone — parties, witnesses and the tribunal — if the parties agree on the authenticity and admissibility of as many exhibits as possible before witness testimony begins. It is time-consuming and distracting to move witnesses in and out of breakout rooms midstream every time a new exhibit is introduced. The better practice is to identify and resolve evidentiary issues ahead of time.
2. Each participant should use two monitors or devices.
In order to see an exhibit clearly while not losing sight of the witness, opposing counsel, and the fact-finder, it is essential to use two monitors or screens. These can be linked through a single central processing unit or can be separate devices, such as a desktop and laptop arranged side by side.
Either way, a two-screen setup allows the lawyers to view exhibits on one screen while the hearing participants remain visible on the other. It is vital during a remote hearing — perhaps even more so than during an in-person hearing — to humanize the trial process and maintain a connection to other participants' statements and reactions. Using two screens greatly enhances this.
3. Clear your desktop.
Any participants who will be publishing evidence should remove all folders from their desktops before the hearing begins, especially folders with names that reveal confidential information about other cases (like party names), contain personal information, or are described in a way that might telegraph the team's arguments or strategy. This way, the desktop background itself can be shared with the group without compromising client confidences.
Also remember that the background picture or logo on the desktop will be visible and should be professional. This is not the moment to use a personal photo as your background.
4. Download your exhibits.
Although you may plan to access exhibits from a shared server during testimony, it is best practice also to download and save local copies of all exhibits in their final, marked versions in advance of the hearing. This ensures smooth sailing if your team faces a server malfunction or internet slowdown.
This kind of redundancy should be your mantra throughout a remote hearing — although there are a lot of great applications out there, you will be well served by preparing a low-tech backup plan for presenting evidence, so that your case does not rely on any single computer system or application.
5. Use hard copy exhibits when more practical.
Although it takes additional planning and logistical coordination, we found it helpful to provide witnesses with hard copies of many of the exhibits before their testimony. Some exhibits, such as short emails or spreadsheets, work well when viewed electronically, but others, particularly lengthy documents, are simpler to review in hard copy.
It can be easier and more efficient for a witness to flip through a long document physically, instead of asking the publisher to scroll through it page by page on screen. And, of course, using hard copies allows participants to read at their own speed. Also, the hard copies serve as backup if your team runs into any problems publishing electronic evidence. Again, redundancy helps.
Some of you may wonder how to send hard copy exhibits to a hostile witness without tipping your hand as to your examination strategy, but there is an analog solution to this analog problem: Simply send that witness the exhibits in a sealed envelope or box with a cover letter instructing the witness not to open the package until they are live, on camera, during the examination.
6. Sometimes, less is more.
Specialized exhibit sharing platforms may provide more elegant interfaces or visual bells and whistles, but those platforms can be slow and do not necessarily provide any functional advantages.
We found that Adobe Acrobat, a standard PDF editor and viewer, had many helpful features, such as keyword search capabilities, the ability to keep multiple exhibits open simultaneously to navigate quickly among them, tools easily permitting us to focus the witness's attention on key portions of exhibits, and excellent bookmarking features for quick access to particular sections of longer documents.
These tools allowed us to display exhibits quickly and to flow seamlessly from one exhibit to the next. And not incidentally, it was cost-effective. Your firm likely already has a subscription for a PDF viewer and editor, so you may not have to incur any additional cost to use it during your proceeding.
7. Take a case-by-case approach to non-PDF media.
Documents like emails and Word documents work well as exhibits in PDF format, but other exhibits may be in video, audio or spreadsheet formats that don't convert easily to PDF. Decide how to handle these exhibits on a case-by-case basis.
With audio, we included a placeholder page marked with the exhibit name in our hard-copy exhibit binders and played the recording on another application in the background during the hearing. On Zoom, you must share your screen in order to share computer audio, so we used the visual placeholder to initiate the share-screen function, even though the content of the exhibit was auditory.
For video, open and share the exhibit in an application such as QuickTime Player. For exhibits such as spreadsheets, which can be difficult to parse in PDF format, consider opening them in Excel and highlighting the relevant cells as testimony proceeds. And, of course, practice using these exhibits in advance to ensure a seamless presentation.
8. Electronically bookmark longer exhibits.
As part of your pretrial preparation, bookmark lengthy documents in Adobe to identify the most salient portions. This will enable the publisher of documents to jump to those bookmarks during a witness examination.
Make sure all PDFs have text recognition enabled, even if they were not initially so processed, so that you can quickly search for a keyword or Bates number in the event you need to navigate to a portion of the exhibit that is not already bookmarked.
9. Be cautious with the share-screen feature.
Sharing a screen with a large group of people carries the risk of damaging mistakes. It is very easy to publish the wrong document — like the confidential witness examination outline being used at that moment, or a team email suggesting follow-up questions for that witness.
To avoid mishaps, the team member responsible for publishing exhibits through the share-screen feature should close out of all programs or documents other than those that will be used in real time to publish documents, such as Adobe and Excel.
This can be tricky when trying to simultaneously follow a witness examination outline, but our team used two simple workarounds: Either print out the witness examination outline in hard copy, or open the examination outline on a second screen or device.
Even if the screens are linked, the publisher can opt to share only "Desktop 1" or "Desktop 2" — just take care to select the correct desktop. Like all of these suggestions, this gets easier with practice, so make sure to use these tools during pretrial witness prep to iron out the wrinkles.
10. Don't be afraid to speak up.
Although the goal is to transition seamlessly from one exhibit to the next, it will sometimes be necessary for the examining lawyer to provide more specific instruction to the exhibit publisher. Everyone can get used to this — if need be, simply tell the publisher that you need her to scroll back a page, or to zoom in.
One major flaw in many screen-sharing platforms is that the publisher cannot see how the exhibit appears to the group viewing the exhibit, so if something appears incorrectly on the screen, the examining lawyer or another team member must let the publisher know so the problem can be rectified.
11. Don't let the exhibit be a distraction.
As we all know from in-person hearings, once you hand a juror a piece of paper, the juror will stop listening and start reading. The same is true electronically — an exhibit on a screen distracts from the witness's testimony.
Thus, exhibits should be used thoughtfully: Put them up only when they enhance witness testimony and take them down as soon as they are no longer needed.
If you are not the team member publishing exhibits, be sure to remind the publisher to take down the exhibit if it lingers. It is preferable for someone other than the examining lawyer to do this — and, even better, to do so on a communication back-channel — so questioning can continue without interruption.
12. Practice, practice, practice.
Distribute witness outlines among your team as early as possible and run through mock examinations — and practice publishing exhibits — on whatever platform you will use at trial. If possible, do this multiple times before the hearing begins.
The publisher will gain a better sense of what is coming, so they can have the exhibits queued up and ready to go during the actual hearing. That person should become very familiar with the features of the chosen platforms — including tools for searching, zooming in, bookmarking and publishing multiple documents side by side. The platform may also have the ability to create keyboard shortcuts for some of these tasks, which will save time in the long run.
Conclusion
We hope these evidentiary tips will increase your comfort level about trying cases online, or, for that matter, taking depositions online. Even if you don't yet have a remote proceeding upcoming on your calendar, it is well worth becoming familiar with these practices, because it seems likely that demand for remote proceedings will long outlast this pandemic.
Nicole Gueron is a partner and co-founder, Melissa Holsinger is counsel, and Muriel Leung is a paralegal at Clarick Gueron Reisbaum LLP.
Clarick Gueron associate Allison Pincus contributed to this article.
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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