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November 15, 2021 Feature

Remote Control? How to Deal with Cross-Examination in Virtual Hearings

Lauren E. Melhart

For a trial attorney, cross-examination is the most exciting part of any evidentiary proceeding. You, the lawyer, get to be the focus. You get to be the star. When conducted properly, cross-examination gives you complete control of the courtroom. But is that true when the courtroom is virtual? Can you maintain control when:

  • the proceeding is interrupted because an unstable internet connection drops the judge from the meeting;
  • the witness talks over you thanks to lagging internet speeds and the court reporter, inevitably, has to interrupt; or
  • the exhibit you need won’t load/the court won’t let you share your screen?

Maybe not when the issues are beyond anyone’s control. But, all else being equal, you can be highly effective at cross-examination in a virtual hearing if you are prepared for the nuances that come with remote proceedings.

Prepare Yourself

Despite the novelty of virtual backgrounds, remote court looks drastically different than an actual courtroom, and not just because most people are wearing slippers and sweatpants. The visual variations that accompany conducting court through a computer can be very distracting and demand that you prepare yourself for where to look, where to stay, and what to say in order to remain effective.

First, don’t stare at yourself. When conducting cross-examination in “normal” court, you look at the witness as a way to maintain control. You look at the judge to assess whether your points are landing as you intended. You look at opposing counsel when he/she makes objections. You don’t, though, look at yourself. . . because you can’t. The biggest distraction in a computer courtroom is that your view consists of at least six boxes of faces, one of which is your own. No matter how tempting it is (and it is tempting), don’t stare at your own box. Instead, make a conscious effort to keep the same focal points you would in a physical courtroom. It will take practice to keep your focus trained, but it is a vital component to an effective remote cross-examination that is worth the effort.

Second, pick your set-up before you start and stick with it. Whether you sit at a table with your laptop stacked on books or stand at a podium with the camera out of reach, your performance will be better if you find out what is the best set-up for you before you begin. Likewise, test your lighting before logging on. Do you need a lamp? Are side windows casting a shadow across your face? Is your computer’s auto-adjuster constantly updating? If you are moving around or your screen is constantly adjusting itself, your Judge is going to have a hard time absorbing the amazing points you are making. Test out a few different set-ups at different times of the day before your trial begins and pick the one that works best for you.

Finally, make a very short outline or list of bullet points for your cross-examination ahead of time and print it in whatever size font is big enough for you to read it without much effort. People will literally be looking at the top of your head if you are constantly looking down and reading off a script. Given the number of different things you need to be focusing on as stated above, you don’t have time to waste staring down at long notes or deciphering chicken scratch you wrote during direct. An intentional pregnant pause can be very effective in argument, but an unintentional span of silence during cross-examination because you are trying to come up with your next question is painful.

Prepare Your Exhibits

Unlike other areas of law, exhibits are often used on cross-examination in domestic litigation. Text messages and social media posts are prevalent in our cases and are often the best way to highlight an opponent’s character flaws. In a virtual hearing, easy access to these exhibits is essential to effectively incorporating them into a cross-examination. If you can’t get to them quickly, more likely than not, you might as well not bother.

To keep exhibits from becoming a hindrance on cross-examination, follow these three tips:

  1. Save them in a folder separate from the exhibits to be used in other parts of your trial;
  2. Save them numbered first in the order you plan to use them (i.e., 1 – Mother’s Ex; 6 – school text; 2 – Mother’s Ex; 12 – bad grades); and
  3. Save them with a brief description of their purpose.

This formatting will let the exhibits auto-organize in the order you will use them and give you a clue as to why the exhibit matters.

Additionally, it is imperative you know the judge’s policies and procedures on exhibits before you plan to use any in your cross-examination. Can you share your screen? Do all exhibits, even rebuttal or impeachment exhibits, have to be produced prior to the hearing? Will the judge print the exhibits beforehand, or will he rely entirely on counsel to publish exhibits? Knowing the answers to these questions before you make your cross-examination outline can prevent an awkward stumble that would derail your cross-examination had you not been prepared.

Finally, make sure you wait until the judge can see, and is viewing, the exhibit before you use it. Just as a screen of multiple faces in boxes is a distraction to you, so it is to the judge as well. Add in trying to see a document she has never seen before on a shared screen or find it in a stack of papers, and you have a perfect storm of confusion. If the exhibit is so important to making your point that you use it on cross, you must make sure the judge’s attention is on you and your exhibit before you proceed.

Prepare Your Client/Witness

A final area where remote trials are uniquely different from in-person proceedings is that witnesses are essentially on an honor system when it comes to the rules. Informing your witnesses (including your client) of these rules in advance helps ensure they get to cross-examination. Although hard, it is possible to catch a witness breaking the rules in this virtual world, and, when that happens, the consequences can be severe. In addition to the traditional tips regarding cross-examination, be sure to advise your witnesses of the following rules that exclusively apply to virtual hearings:

  • No one else should be in the room when you testify. Judges notice when a witness consistently looks off screen or there is a reflection of a person in the picture in the background. Just like no one can sit with you in the witness box, no one should be with you when you are on screen.
  • For nonclients, the Rule of Witnesses still applies. In other words, no watching YouTube! Many courts live stream proceedings in order to comply with open courts laws. If the Rule has been invoked, a witness could be prevented from testifying if it is discovered she/he was watching the proceedings while waiting his/her turn.
  • Do not text anyone while you are testifying, and do not text anyone else while they are testifying.

For over a year, courts across the country have relied on videoconferencing to keep dockets moving and justice flowing. This technology has been remarkable in many ways, perhaps most importantly by permitting cases to be resolved without requiring physical proximity. It hasn’t been perfect, though. The hassles that accompany virtual hearings can be overcome, though, if you are prepared for them, even on cross-examination, where control is key. If you are properly prepared, you can effectively cross-examine and be in control despite being remote.

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Lauren E. Melhart is a partner at Kinser & Bates, LLP in Dallas, Texas, and is board certified in family law by the Texas Board of Legal Specialization. She is a fellow in the American Academy of Matrimonial Lawyers, serves on the board of directors of the Texas Academy of Family Law Specialists, and is an active member of the Texas Family Law Foundation.