Tax Court judges may not be sympathetic to technological failures and sound problems during virtual trials.
The court has scheduled its regular case calendar session to begin Sept. 14, which means practitioners have less than five weeks to prepare for their first Tax Court virtual trials. Here, Law360 presents four tips for preparing to go virtual.
Know, Follow New Deadlines
The Tax Court has not only shifted trials to teleconference but also adjusted several filing deadlines, and it is important to know and adhere to these changes so as not to miss out on getting evidence on the record or the chance to get a case dismissed.
Before COVID-19, a pretrial memo — which typically includes how much is in dispute and the likelihood of a case settling or going to trial, along with an estimate of trial time — was due no later than 14 days before the first day of a trial session. Under a new administrative order, the pretrial memo is now due no later than 21 days before the first day of the trial session.
The pretrial memo generally requires identifying witnesses, so is important to know the deadline changes or else risk not being allowed to call the witnesses, Richard Carpenter, a principal at Richard Carpenter Tax Law Office, said during a recent webinar hosted by the University of San Diego School of Law.
Being aware of new deadlines is especially crucial for attorneys who have been practicing in the Tax Court for years, so they don't follow the old deadlines out of habit, Carpenter said.
Proposed trial exhibits are also now due 14 days in advance, so practitioners need to make sure they have submitted those documents to the court so they can later be used during examination of a witness, Carpenter said.
Another change is that stipulations of facts, which previously were submitted at the calendar call, now must be submitted 14 days in advance. The documents and pages should be numbered so it is easy for parties to identify them, according to the order.
Lawrence M. Hill, a tax partner at Winston & Strawn LLP, said it is important to try to stipulate as many facts and documents as possible because it will make things go smoother and shorten the length of the trial.
"The earlier things are provided, the more time you have essentially to prepare to address those issues," he said.
If the stipulated facts are due seven days earlier, then practitioners can use the extra time to work with their technology staff to be able to access exhibits and present them quickly during trial, Hill said.
"Because of the remote trials, it makes sense that deadlines are going to shift; you just have to plan accordingly," he said.
Work Out Technology Problems
Working out the technological issues before a trial starts is key because glitches will inevitably arise with the shift to holding proceedings via teleconference.
Adapting to remote trials requires mastering a completely new set of skills, and preparing requires not only understanding the Tax Court's new procedures but also thinking about how to respond to technology problems that could arise, said Timothy Jacobs, a tax partner at Hunton Andrews Kurth LLP.
For example, Jacobs said, during one of his first videoconference proceedings, his video worked and he could hear people on the call, but other conferees could not hear him, which was embarrassing. Such a sound glitch could happen during a Tax Court proceeding, and judges won't necessarily be sympathetic to technological mishaps, he said.
"Even the most experienced courtroom litigators will need to become experts in this new technology," Jacobs said. "I learned the hard way that I need to take personal responsibility for the videoconference technology, and personally test the technology in advance."
Another major consideration is ensuring adequate internet bandwidth for the teleconferences, both at home and at the office, according to Frank Agostino, the founder and president of Agostino & Associates PC.
"Update your bandwidth," Agostino said, because "you really need to have the fastest internet connections."
The more people who are participating in a call or video — including witnesses, the lead attorney, a second attorney who's at home, the judge, opposing counsel and others — the greater the potential for a slowdown, he said.
It is also crucial to have excellent information technology staff members who can help handle all the technological aspects of a trial, from the internet connection to uploading and presenting documents as exhibits, according to Hill at Winston & Strawn.
"You don't want something to go wrong with the technology, [and] as a trial attorney, you do not want to be distracted by handling it yourself," he said. "You don't want to be responsible for any of the technology during the trial, because it distracts, and many lawyers aren't trained to manage that."
Ideally, technology staff would be in the same room as the lawyer so that if something goes wrong the IT staff can correct it live, Hill said. He advised using a large conference room or a large home office that allows everyone to maintain appropriate distances from one another.
Practice, Practice, Practice
Practicing arguments is essential to success for both virtual and in-person trials because it can make a presentation more polished and give a practitioner the chance to adjust for possible viewpoints he or she may not have considered.
"I always do a practice run on the equipment, the physical setup, and to the extent possible a run-through in the actual courtroom," Jacobs said. "Virtual proceedings are no different in my mind."
Part of practicing is becoming comfortable with how to call for and bring up documents to present into evidence at trial or for impeachment purposes, Agostino said. Practice will enable a practitioner to present documents with ease, which could bring back a feeling of normalcy to the virtual trial, he said.
Practicing direct and cross-examinations with witnesses is also important because witnesses, too, will not be familiar with the new technology and won't know where to look or how to react and process questions, which are all important parts of someone's testimony, Jacobs said.
For a normal trial, Jacobs said, he typically shows a witness the courtroom ahead of time and indicates where he will sit and where the witness will sit. He recommended doing the same for a virtual trial to make sure the witness is comfortable with the technology and can be heard and seen, he said.
Preparation requires both the witness and attorney to understand the technology, so it's imperative to practice questions and answers through the Zoom platform, he said.
In addition, cross-examination may not be as effective during a virtual trial, Jacobs said. For example, rapid-fire leading questions may lose some of their effectiveness, since not everyone is in the same room, he said.
"The typical theatrics of cross-examination and its fast clip may not be possible in the virtual world — especially with delays in transmission of video or audio and difficult witnesses," Jacobs said. "There will be a learning process for both the attorneys, witnesses and the Tax Court."
When the trial actually happens, it would help to have witnesses in the same room as the practitioner or to have a colleague present with a witness if he or she lives far away, Hill said. Having someone in the same room as the witness will put the witness more at ease and make the testimony more effective, he said.
"Prepare your witnesses by doing mock examinations and cross-examinations virtually," Hill said. "Have them focus on you when you are questioning them and opposing counsel when they are being cross-examined."
One virtue of the remote trial is that if both sides and the judge can all be seen on screen at once, a witness can more easily read reactions to questions and answers from any of the parties, Hill said. So advising the witness to look directly at the judge when he or she asks questions and sometimes look at the judge when answering counsel's questions will be particularly helpful, especially with expert witnesses, he added.
Keep It Professional
It is imperative for attorneys, witnesses and taxpayers to stay professional, which requires not only wearing proper clothing but setting up the background of the video in a way that eliminates outside distractions.
"Counsel's dress and the witnesses' dress and demeanor should mirror that of a live trial," Hill said. "I've asked witnesses to dress professionally and show up for a practice session like they would in court, and occasionally you have to give them constructive criticism on that."
It's best to dress conservatively, Hill said. He recommended wearing blue clothing instead of white and avoiding clothing that is bright, distracting or gaudy.
"Sometimes white shirts on a television come out too bright-looking," Hill said. "So I think you're better off wearing a pale blue shirt or blouse as opposed to white."
Make sure there are no distractions in the background, such as barking dogs, crying kids, vacuuming or lawnmower noises, Hill said. In addition to eliminating distracting noises, set up an appropriate background with good lighting and sound, he said.
"This is serious business," Hill told Law360.
--Editing by Tim Ruel and John Oudens.
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