Preparing Clients and Witnesses for Remote Hearings

Given that remote hearings continue to be a thing of the present, it is important that—if we haven’t done so already—we start making changes to the way we prepare our clients. Accordingly, here are four simple considerations for successful client preparation in a virtual world:

1. Make sure your client has the proper technology.

First things first, talk with your client about how you intend to conduct the hearing. If you are not meeting with clients in person, it’s important to make sure your client has adequate technology to participate in the hearing without you physically present. For some clients, a remote hearing from the comfort of home may be ideal. They may already have a good internet connection, a desktop computer, a video camera, headphones, speakers, and other items helpful to a remote hearing. In some cases, laptops and tablets can work just as well as a desktop computer. However, this is not always the case, so you need to try these things out with your client well in advance of the hearing.

In addition, if you intend for your client and witnesses to testify from home, you should discuss how their home setting and physical appearance might impact credibility. Things like bad lighting, poor camera placement and/or angle, inappropriate backgrounds, poor internet connection, or muffled or quiet sound will prevent your clients and witnesses from being able to effectively present testimony to the court. Of significance, remind your clients that they should dress and appear the exact same way for a remote hearing as they would for an in-person hearing. Pajamas are not appropriate, and pants are not optional.

In the event your client has limited technology at home, it may be better to have your client appear for the hearing from your office space. In some cases, firms have designated separate conference rooms for their client and witnesses to use during virtual hearings. In other cases, firms have set up conference rooms to allow attorneys and clients to appear at the hearing from the same room. If this is your preference, please make sure the judicial officer and opposing counsel have a clear line of sight to both you and your client to avoid any appearance of impropriety and/or witness coaching.

2. Make sure your client understands the virtual platform.

Once your technology problem is solved, your next step is making sure your clients and witnesses know how to use the virtual platform utilized by your court. Some commonly used platforms are Zoom, Webex, Microsoft Teams, and GoToMeeting. Each of these platforms has online user guides and/or training videos that provide helpful step-by-step instructions. See Zoom, Webex, Microsoft Teams, GoToMeeting. Regardless of whether your court uses these platforms or some alternative, each platform has its own options and features of which you should be familiar. It is imperative that you know each of the features of your specific platform so you can adequately go over these with your client and witnesses. Be familiar with things like muting and unmuting your microphone—including knowing when your microphone is muted—turning your video on and off, sharing your screen, controlling feedback, virtual conference rooms, and background or filter options. In looking at various backgrounds and filters, you should really weigh whether such options are helpful or cause too much of a distraction. Walk through these considerations with your client and witnesses. Make sure they understand the potential consequences of failing to understand the platform. By now, there are several viral videos to serve as effective motivators. See “I’m not a cat.”

3. Make sure your client can access exhibits.

Though the pandemic has forced us into virtual hearings for a time, evidentiary rules remain the same. Consequently, clients and witnesses have to have access to exhibits during these hearings so you can admit them into evidence. If your clients will not be in-office, make sure they have a complete copy of the exhibits, including an exhibit index, in a format they know how to use. If your client prefers electronic copies of the exhibits, the exhibits should be indexed, bookmarked, and/or hyperlinked so your client can easily locate individual exhibits and pages during the hearing. Having your client spend several minutes scrolling to a specific page on an exhibit will lose the judge and negatively impact your case. You also may want to consider advising your client to have dual monitors so they can access exhibits on one screen while the hearing is on the second. In the alternative, consider screen sharing. Some platforms, or judges, may not allow screen sharing, so you will need to determine if this alternative is a possibility. If all else fails, it may just be easier to deliver a hard copy of all exhibits to your client for use during the hearing.

4. Practice.

As with anything else, practice makes perfect. The more time you spend practicing outside of court, the less likely it will be that you experience problems during your hearing. While there may be some unforeseen circumstances, if you have spent the necessary time practicing, you should be able to avoid any major issues.

While there seem to be hopeful whispers of things returning to “normal”—whatever than means—we must adapt in the meantime to provide our clients with adequate representation. Once we figure out how to navigate these new technologies, we can get back to doing what we do best: litigating.

Quick Reference Checklist

Will the client be at your office or at a remote location for the hearing?

If a remote location:

Does your client have appropriate technology?

• Computer
• Dual monitors (not mandatory, but helpful)
• Video camera
• Speakers/headphones
• High-speed internet connection

Does your client have the appropriate setting?

• Proper/clean/decluttered background
• Proper lighting
• No background noise
• Someplace private
• Camera angle
• Courtroom attire

If in-office:

Will you be using a separate conference room for your client?

• Consider the above points for a remote location.
• Will you and your client be in the same conference room?
• Make sure the court and/or opposing counsel can clearly see you and your client.

Have you reviewed the virtual platform?

• Is your client familiar with the virtual platform?

Does your client have a complete copy of the exhibits?

• Index
• Exhibits (bookmarked and/or hyperlinked)
• Hard copy

Practice!