The effects of the pandemic and the resulting business closures, limits on access to public and private offices, and other measures continue to be felt in our lives and in our practices. Nevertheless, life goes on, and people still need to have resolutions of some kind to their family law issues. While it has hardly been “business as usual” for any of us, there have been some remarkable advances in the use of technology. Lawyers and courts have hardly ever been classified as “cutting edge” in the adoption of new methods or procedures. Nevertheless, judicial officers and practitioners around the country have developed and adapted to a wide array of previously unimagined ways to carry on our practices and proceedings outside the confines of courtrooms, conference rooms, and the other shared physical spaces that have been the hallmark of what we do.
November 15, 2021 From the Editor in Chief
From the Editor in Chief
Kathleen A. Hogan
We have all seen the results of some of the technology gone wrong, including embarrassing video backgrounds or filters, the frustrations of slow internet connections, or the embarrassment of sharing the wrong screen. However, many of us have also seen the enormous savings in time for the lawyer and fees for the client when a proceeding that used to involve travel time, parking fees, and the like can be conducted without the need for anyone to leave their home or office.
A variety of video conference platforms have been adopted throughout the country, including Zoom, Webex, and Microsoft Teams, to name a few. In a world where it has sometimes seemed that everything that could go wrong will go wrong, a pleasant surprise has been that the various platforms are generally similar in their functionality. As a result, the articles, YouTube videos, or other resources discussing how to use one such platform have been generally useful in learning how to navigate other platforms. Our authors have, to a large extent, included references to the specific platforms or programs used in their jurisdictions. This is not intended as an endorsement for any particular programs. However, we believe the information provided will generally be instructive even if the one of the other programs is being used by your particular court, mediator, or other professional.
The Honorable Regina Scannicchio, a circuit court judge in Chicago, offers a judicial perspective on the challenges of overseeing courtroom proceedings on remote platforms, such as Zoom, in her article, “Being a Judge in the Zoom Courtroom: Traditional vs. Remote Proceedings.” She offers an array of practical tips and considerations pertaining to technology, witnesses, testimony, evidence, and more for judges, all of which can also benefit attorneys.
In an article called “Up Close and Personal: The Challenges and Opportunities of Remote Litigation,” Brendan Hammer uses his pre-law theater background to focus more on the performative and stagecraft aspects of the brave new “e-litigation ecosystem” we are all trying to navigate. He notes that the once “broad canvas” of a physical courtroom, including the counsel table, well, and witness box, is now relegated to the narrow lens of a camera. He describes how savvy attorneys can use the camera to their best advantage, from effective lighting, body language, evidence presentation, and more.
Having covered the judge’s and attorney’s perspectives on remote proceedings, we then turn to the other essential element—the client—in “Preparing Clients and Witnesses for Remote Hearings” by Kiilu Davis and Sally Colton. They make the daunting simple by breaking it down into four main goals: ensure your client has the proper technology, knows how to use it, can access exhibits, and, perhaps most importantly, practices. They also provide a handy checklist when preparing your client for a remote hearing either in your office or from a remote location.
After years spent honing one’s cross-examination skills, attorneys are finding that virtual cross-examination can fall rather flat. Lauren E. Melhart in her article called “Remote Control? How to Deal with Cross-Examination in Virtual Hearings,” maintains that attorneys can still be highly effective at cross-examination in a virtual hearing. The key, like in every other aspect of remote proceedings, is to come prepared.
Nothing about the new virtual practice has been entirely smooth sailing, and a pessimist might say, what can go wrong will. Luckily Wendy Brooks Crew and Christina Vineyard offer concrete solutions to many of the most vexing and risky issues that pop up in their article “Solutions for Problems Presented with Virtual Trials.”
“Best Practices for Lawyers in a Virtual World” by Katharine W. Maddox discusses how to handle what used to be mundane, easy-to-manage office matters, such mail/faxes, visitors, office space, IT, and general health and safety, in the age of COVID-19. She even offers sample templates for COVID safety agreements for visitors and a liability waiver explaining the confidentiality risk of communicating with clients on platforms such as Zoom.
In “Appealing from the Remote Environment,” Campbell D. Barrett, Stacie L. Provencher, and Johanna S. Katz explain the pros (more convenience for faraway witnesses, greater access for public viewing) and cons (people speaking over each other, inaccurate transcripts) of remote appeals and how to make the most of the new normal.
The article “In Navigating Remote Custody Proceedings, Custody Evaluations, and Child Therapy During the COVID-19 Pandemic” by Gloria E. Block and Gabriela O. Asrow discusses how attorneys, guardian ad litems and child representatives, therapists, evaluators, and parents can, amid the virtual challenges, stay focused on protecting the best interests of the children in the case.
Fahi Takesh Hallin lays out the pros and cons of conducting remote depositions, focusing more on the positive than the negative, in “Embracing and Preparing for Remote Depositions.” Pros include the ability to depose faraway witnesses, cost savings for busy expert witnesses who need to travel, and relative speed. Cons include the risk of cheating and technical difficulties and the potential for hidden costs.
In “Effective and Personalized Mediation During the Zoom Boom,” the Honorable Michele F. Lowrance (Ret.) notes the nature of mediation requires cultivating relationships of trust and comfort with your clients but that a remote environment can seem cold and distant. The distinguished jurist and now experienced mediator details how she had to quickly pivot to building relationships with clients on Zoom and learned ways to add a personal touch.