By Philip Marsh, Bridgette Boyd and Michael Gershoni

Law360 (November 20, 2020, 1:05 PM EST )

Philip Marsh

Bridgette Boyd

Michael Gershoni

The COVID-19 pandemic has caused widescale disruption to U.S. litigation practice and has forced the industry to get creative and adapt to new practices. In the early stages of the pandemic, many courts canceled in-person appearances. Now, over six months later, many tribunals are embracing virtual trials and other proceedings.

We recently concluded a weeklong virtual evidentiary hearing at the U.S. International Trade Commission. This article provides key insights from our experience that will hopefully help you present your best case without stepping into the courtroom.

Picking the Right "Venue"

If not in the courthouse, then where? Like all good questions, the answer is, it depends.

For virtual trials and other court proceedings, it is paramount that you consider where you and your team will be when you make your case. Fortunately, there are several options — each with its own unique set of benefits and challenges.

The Home Office

On one end of the spectrum, it may be feasible for you and your team to litigate a virtual trial or other proceeding separately from each other in your own respective home offices. Unlike a traditional court proceeding, at a virtual proceeding you may not need to be visually present at all times.

In our trial, to minimize disruption and reduce bandwidth strain, only those who were actively participating were visible on screen, i.e., the judge, the witness, the examining attorney and the defending attorney.

There are obvious benefits to being in the comfort of your own home office when you are not on screen. For example, if you are more productive working in casual clothing, working from home allows you to do that while also having more formal clothing nearby, if needed.

And while your office may have had everything you needed to be productive pre-COVID-19, that may no longer be the case, as many offices have removed shared coffee machines, water coolers and other conveniences to reduce COVID-19 transmission and promote social distancing. Problems from these missing conveniences are avoided if you are able to participate from your home office.

One important consideration for all venues is whether you have sufficient internet capabilities to handle the rigors of a court proceeding. Running a constant video stream using Webex or Zoom while also downloading documents and sending and receiving emails can tax even good Wi-Fi systems.

Indeed, even if you have exceptional internet speed, your virtual private network connection may prohibit you from achieving your network's peak speed. The same is true if you're sharing your internet with others, particularly those at home who may be have their own Zoom session or who may decide to stream a movie in another room.

One way to determine whether this will be an issue is to test your internet speed under different scenarios. A quick search for "internet speed tests" will present many online tools available to test your internet speed. At the time of writing this article, for example, the download speed for one of us was about 430 megabits per second while not connected to any VPN and only about 150 megabits per second while connected to a VPN, a nearly threefold reduction.

This kind of difference can be critical when trying to cross-examine a witness on the stand. If your internet speed is not sufficiently fast while connected to a VPN, however, that does not mean you cannot litigate from home. One workaround is to download all the files you need ahead of time — obviating the need to be connected to a VPN, e.g., for downloading documents during trial from your firm's file system. This could be done selectively, for example, during times when you need to be speaking in court and speed is more critical.

The Shared Office

On the other end of the spectrum, you may decide to bring your team and witnesses to a shared office. If it is safe to do so, then there are also benefits for being in direct contact with your team and witnesses.

For example, working from a single location permits your team to create a courtroom façade that may normalize the process. This could include setting up a podium and stand for the taking attorney and witness, which is especially beneficial for those that feel more comfortable presenting an examination with direct witness contact.

Direct witness contact may give a slight advantage to the attorney in the same room with the witness, as the witness and attorney may be better able to read each other's verbal and nonverbal cues than the attorney who is connected via video.

Another potential advantage of this option is that your team is physically together and can easily communicate as they normally would, using sticky notes, whispers and hand gestures. If someone's examination is running too long, or venturing into dangerous territory, it is easy to communicate this to the questioning attorney, where this might be more difficult if each attorney is located remotely.

If you decide to use this approach, there are several things you should consider to ensure effective communication of your case while minimizing disruption.

In virtual courtrooms, attorneys and witnesses are identified as being present via a participant list and screen label, which shows each individual who enters and exits the virtual hearing. But in a shared-office environment, a single camera and connection may be used for multiple attorneys and witnesses. Thus, it is imperative that you establish a clear way of identifying who is in front of the camera.

If you have the technological capability, a graphic overlay on your visual feed with the name of the current participant is an effective way of communicating who is participating at any given time. If that is not an option, a physical placard may also be used, but may be harder to read on camera.

If you pursue the shared-office option, it is more critical to test out the setup ahead of time to assess how witnesses and attorneys will look on camera and confirm they can be seen along with their identifying information. Depending on the view settings, the judge may only see you as a small box on her screen. If the camera is too far away, then you or your witness may be difficult to see.

Another thing to consider is how using this approach is affected by normal courtroom activities. If using paper documents, be cautious as to how your microphone may be picking up ambient sound such as the sound of shuffling papers.

Unlike a courtroom, where the microphone is just one source of sound the judge is hearing from you, in a virtual setup, the microphone provides the only sounds the judge hears from you. And your sound is competing with all other sounds on the virtual feed. So if your microphone picks up ambient sound, it can be very distracting and can make it hard to hear you, the witness or opposing counsel.

Also, if you plan to communicate with your team like you may do in a traditional courtroom, you should be extra cautious because your microphone may be picking up your conversations and whispers. There are various types of microphones that you could use to minimize distracting ambient noise. But whatever you decide to use, the key is to test out your setup ahead of time to minimize any problems or distractions.

The Individual Office

Of course, between these two alternatives is the option of having your team present in-office, but having each person use their own respective offices. This is more akin to working from home, but has several distinct advantages.

One advantage is that you can benefit from more in-person interaction with your colleagues to get things done quickly and efficiently, while maintaining the ability for active participants to be in their own room with an active camera and microphone at any given time. Another advantage is your proximity to information technology and logistical support, as unforeseen technical issues are always possible.

If you choose this approach, it is important to communicate with your office administrator and others to confirm the precise capabilities of your office environment and the availability of support staff to meet your needs. Like the home office option, you will need to determine the right equipment for each individual office, a plan for how to communicate between the attorneys in their individual offices, as well as how to communicate with those located remotely from the office, including witnesses and in-house counsel.

Picking the Right Tools

Choosing the right technology is essential to virtual courtroom success. Primary considerations are clear audio and video. A clear audio feed is necessary to effectively communicate your case virtually. While built-in microphones may be sufficient for small-scale virtual meetings, they can often pick up unwanted ambient noise, which makes it difficult for the judge, jury or court reporter to clearly understand what you are saying.

To ensure that your audio is as clear as possible, we recommend the use of a directional external microphone. Directional microphones hear best what happens in front of them — i.e., someone speaking into the microphone — while rejecting unwanted sounds from the sides and rear, which helps avoid transmitting other sounds in the room or creating distracting feedback from your speakers.

As mentioned above, the microphone situation may be more complex if you have multiple microphones in a single room, and will require extensive testing to avoid problems and issues.

In addition to crisp sound, it is important to have a crisp image and smooth video as well. In lieu of the camera built into your laptop, consider an external webcam that can offer better resolution and video quality. A high-quality camera will ensure that the judge can see you and read your facial expressions. The ideal camera may vary depending on the office setup you select.

For example, a high-quality webcam is likely sufficient for the home office or the individual office setups mentioned above, where you are sitting at a single computer. But in a shared-venue setting, you will likely want cameras of sufficiently high quality and with zoom capabilities to show the witnesses and attorneys in sufficient detail that the judge can see and read facial expressions, even if they are seated further from the camera.

Proper lighting is something that you do not have to consider during traditional court proceedings, but is important in a virtual proceeding. Judges want to be able to see the attorneys and witnesses, read facial expressions and, where possible, judge credibility. This is not possible if the person speaking is not sufficiently visible.

Proper lighting may vary depending on the setup you select for your virtual proceeding. For example, if you are in the home office or individual office setting, an individual ring light can significantly improve your appearance on screen. In a shared office setting, you may need additional lighting — similar to a television studio — to sufficiently illuminate those speaking.

Additionally, if you choose a setup where people will be located remotely, it is important to set up the right tools for your team to communicate with each other. You may want different tools for different tasks, so that you can get important messages to and from the various individuals — e.g., the questioning attorney, paralegals, in-house counsel, the witnesses, etc. — in an efficient manner that does not overwhelm the communications channels.

For example, WhatsApp, Slack, Jabber, Teams or another chat or messaging application may be useful for communications with different teams. Importantly, using a third-party application will help avoid the possible catastrophe of accidentally communicating something publicly via the chat function on the virtual courtroom platform. Mostly, it is important to think through how you want to communicate with each other ahead of time, because the eve of trial is too late to work out some of these issues.

External monitors can also improve productivity during virtual proceedings. Additional screen space can be used for your outline if you are questioning a witness, searching through a document in real time for potential cross-examination or redirect questions, or pulling up a document that is raised during an argument with the judge. Additionally, extra screen space can be important for things such as a live transcript feed, chats with teammates and document review.

Finally, it is critical to ensure you have a good internet connection. Although we mention it last, this really is the most important tool, because without it, none of the other tools matter.

From our experience and investigation, it is best to have a hard-wired connection rather than a wireless connection. Although Wi-Fi is generally great for most applications, at times it can introduce additional delay and just cannot match the performance of a hard-wired connection. But remember that this can be an issue for some remote witnesses who may not have access to hard-wired connections, as such connections can be hard to find nowadays.

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Philip Marsh is a partner, and Bridgette Boyd and Michael Gershoni are associates, at Arnold & Porter.

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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