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Law360 (November 3, 2020, 3:47 PM EST )
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| Jim Lofton |
Even experienced trial lawyers are wondering whether they can be as effective in virtual court appearances as they are in person. If you want to be well prepared for virtual advocacy, here are eight important points to remember.
1. Make your arguments and questioning count.
Judges are trained listeners, but online fatigue is real even for them. Get to the point. Tightly constructed arguments and questions are always important in advocacy, but more so when you are appearing on a computer screen.
What is the most important point that you want to get across to the court? For an argument, use the concept of primacy and recency: Start and end with your key point.
From the first word, the structure of any presentation should anticipate the ending. This is why you should know the ending and structure backward from the desired outcome or conclusion. That way you can choose the essential facts and information that are critical and that lead inexorably to the ending. Leave out the rest.
The beginning is crucial for another reason: It typically provides a narrative hook that engages and captures the imagination of the listener, the judge in this case. The beginning should shape and define the structure of all that transpires afterward.
So, first decide how you want to end. Then, write out an outline choosing the essential information that seems to lead naturally and obviously to the conclusion; then give your outline to a colleague and ask him or her to help you tighten it more. What else can you leave out that is not essential? Winnow it down so that what remains as your final presentation is what really matters.
2. Practice and test.
Dedicate time and energy into preparing your virtual presentation. You are going to need to test your system and the platform you are using, as well as practice the presentation and any screen sharing you plan to do. Well in advance, schedule times to practice both the hearing or argument using the same technology that will be used for your court appearance.
As the first step in structuring a presentation, I usually write out a detailed outline. But the more satisfied and familiar I get with the structure, the more compressed the outline gets. Eventually, I boil my notes down to a one-page outline in large type with key topics and subtopics, so that I am not reading and can be ready when the questions started coming.
This takes practice. But if you master the materials, you will be able to deliver your presentation in a conversational way — that is, with spontaneity, authenticity and passion. As with casual conversation, each sentence will be formed on the spot; you will be selecting the words that form the structure of the sentence as you speak them.
Ideally, it will not sound rehearsed but rather like persuasive casual conversation. This is especially important when you have to think on the fly, either in answering questions from the court or responding to a witness during questioning.
In their book "The Articulate Advocate," Brian Johnson and Marsha Hunter have coined the term structured improvisation to describe this method of speaking: You have practiced and you know the structure of your presentation, but you improvise the words as they are actually spoken.
This is a powerful way to deliver a presentation. You are liberated from notes, from reading, from memorizing, and can connect with your audience in the most impactful way.
3. Be a careful listener.
Andrew Silton, a partner at Beveridge & Diamond PC, recently had an oral argument before a three-judge panel of the U.S. Environmental Protection Agency's Environmental Appeals Board. Silton, who did the hearing from home, as did opposing counsel and all three appeals board judges, shared some insight with me based on his experience.
"First and foremost, be listening," Silton said. "Listen for interruptions from the court. It's more complicated and not as smooth, because when you talk over each other, the audio can break up."
"At the first hint of sound from a judge, be quiet," he added. "You can't read body language, and it's a little tougher to be deferential to judges in a virtual environment, so you have to be more careful to stop talking when you get any signal from a judge."
Silton said that at one point in his argument, he stopped midsentence and asked if one of the judges had a question.
4. Speak to the camera rather than the screen.
It is critical to look at the camera rather than looking at yourself or the judges on the computer screen, though this takes much practice. Otherwise, the judges may think you are looking away.
Staring at the camera, though, can be stressful and distracting, because you also need to be able to see the court's reactions on your screen. You will need to practice looking at the camera eye while also managing what is going on with the judges. In other words, you will need to look down the barrel of the camera, so that it appears to the judges that you are looking at them.
Bradley Preamble, a trial attorney in the Aviation, Space and Admiralty Litigation Section at the U.S. Department of Justice, told me that it's best to approach online argument as if you are a news anchor.
"It's important to look directly at the camera — or have the camera positioned in such a way so that it appears that you are — so that you can make a connection with the judge," he added.
He recommended that you have the judge's camera feed positioned as close as possible to your camera so that you can quickly shift back and forth between looking into the camera and looking for the judge's reaction. But you will need to practice to feel comfortable doing this. Preamble found the iPad to be the best piece of hardware to pull this off.
Once you're comfortable with using your computer for a virtual courtroom session, you may find that it offers some advantages. Using the Zoom platform, for example, you can customize your view of the participants, including pinning the judge to have a dedicated view of him or her.
This way, you will have a good view of the judge because the camera is close to the judge's face. With this feature, you watch the judge without seeming to stare at him or her, especially when you are not speaking.
5. Check the camera angle and audio feed.
Many attorneys choose to be seated, which is usually appropriate for a virtual hearing, but beware of your camera angle. You may need to raise your computer so that the camera is at eye level or higher. You don't want judges literally looking up your nose.
There are trade-offs when doing a hearing from a seated position though. If you are seated, you won't have a lectern, so you will need a stand to hold your notes, assuming you need to refer to them.
A music stand works great. Another idea is to tape poster boards to the walls in front of you that only you can see. Using large letters that can be seen at a glance, you can write out key citations, phrases or reminders in case you need to refer to them during the hearing or when you get questions from the bench.
And remember, if seated, your ability to gesture will be limited. One possible solution is to sit a foot or more away from your computer so that judges can see your hands and torso. Of course, moving away from the camera diminishes your profile, so you will need to spend time experimenting to see what works best for you.
You cannot hear how your own voice is sounding to others in a virtual presentation. Touching a microphone will make a noise. So will shuffling papers. Practice wearing headphones or earbuds to see if one of these works for you. You may improve your ability to hear with such devices, but some people find them restricting or aren't comfortable with them.
One caution: If you are working from an isolated setting, set up some way for co-counsel or a paralegal to be monitoring the proceedings and to contact you in case something is not working well in either your camera or audio feed.
6. Communicate sparingly, but effectively, with team members.
As with an in-person appearance, with an online trial or hearing, you need to think about whether and how you want to communicate with others on your team during an examination or argument. Do you want people sending you notes during the hearing?
One way to minimize distractions is to mute or turn off your phone and shut down your email during the argument or questioning so that you won't be interrupted. That's a good way of blocking distractions, but what if you need help from co-counsel or you need to be made aware of a technical issue?
Some attorneys have opted to confer with co-counsel using the text function on their cell phones. But if you do this, be aware you will need to maintain good courtroom demeanor even though you will likely be muted when you are not speaking, which means minimizing texting with co-counsel.
In short, your online behavior should be no different than it would be if you were in the well of a courtroom. An online appearance may feel more casual, but deference to the court and knowing and following your judge's practices and rules will prevent embarrassment and disadvantage.
7. Resist the temptation to read.
Most attorneys realize that when you are doing an in-person oral argument, it's a bad idea to read. But when you are at home by yourself, the temptation to read may be greater. You think to yourself that no one will notice. You've found a way to easily shift your gaze to your notes, and you really do want to get it perfect.
But we can always tell when people are reading. When you read, your eyes drop down, your voice modulation decreases and inflection disappears. You sound monotonous and boring. Even judges — trained listeners that they are — are susceptible to online fatigue. So don't promote it by reading.
Judges will forgive you if you aren't perfect in your presentation as long as you are authentic, knowledgeable and communicate that you care about your argument. As noted, the best way to deliver a dynamic presentation is by using structured improvisation. Because you can't move or gesture effectively, vocal dynamism is even more important in an online hearing or trial.
8. Be judicious about using visuals.
Screen sharing for visual aids or introducing exhibits is going to be different online than in a courtroom and will be different for a trial or an evidentiary hearing than it will be for an oral argument. Lawyers don't introduce exhibits at an appellate argument and rarely use visual aids. So, let's first consider using slides at an oral argument.
Transitions can be a limiting factor in using visuals during a timed argument. Loading and sharing slides can eat up time and most appellate judges are used to argument only, so you will want to use slides sparingly during oral arguments.
What about exhibits and visual aids at an evidentiary trial or hearing? Demonstrations by a witness or presentation of physical evidence may be difficult to see on a small screen.
For example, a witness showing the judge how a piece of equipment works or pointing to a graph or diagram may not come across well virtually. If you are using exhibits or visual aids, make sure that the images are large enough for the judge to see on his or her computer screen and are something that will be engaging and interesting to the judge.
Just as with a traditional trial, you may need to introduce documents or other evidentiary exhibits at an online trial to meet your burden of proof. However, with some trial software, you may not have the ability to draw or label exhibits on the fly. So, if your software is similarly limiting, you will want to figure out a way to premark exhibits before they are introduced.
But remember, choose the ones that matter and leave out the rest.
Conclusion
Take time to think about what you need to change to be effective in a virtual argument or hearing. Practice ahead of time until you've mastered this new approach.
During the hearing, listen for signals from the judge and look into the camera. Be alert, deferential and prepare for the inevitable technological glitches that will happen.
If you use visuals or exhibits, make sure that they are images that will keep the judge interested and that matter. You may be midsentence or have a question pending from the bench when your microphone stops working or your screen freezes. Don't let this faze you.
With practice and preparation, you'll be able to represent your client in the most effective way possible in what is now the new normal for courtroom hearings.
Jim Lofton is the founder of Lofton Legally Speaking. He previously spent nearly 30 years as an attorney in federal service, including as an assistant chief counsel at the Federal Aviation Administration and as a trial attorney at the DOJ. He was recently selected as a Fulbright scholar and is slated to teach Rule of Law and Trial Advocacy at two universities in North Macedonia in 2021.
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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