Trials not held in a courtroom? Now that is something they did not teach us in law school! As if coping with masks and gallons of hand sanitizer is not enough, we now have to present our cases without being in the same room or building with the judge, opposing counsel, witnesses, and sometimes not even our client. “Zoom,” “virtual,” and “videoconferences” are words now standard in our orders from the courts. The challenges we have faced with virtual technology are monumental, but there are solutions to the challenges “Zoom” trials present, with the most effective often being practice and preparation. Preparation entails a thoughtful process of determining beforehand what could go wrong, and then addressing the issues preemptively before catastrophe occurs. “Is my microphone on?” and “You are on mute!” are two phrases we all try to avoid.
By this time, more than a year into the pandemic that changed all of our lives, particularly our legal ones, the majority of jurisdictions have created judicial directives or administrative orders implementing special access rules and determining that any burden placed on an individual by the new procedures is substantially outweighed by the need to protect the public from further spread of COVID-19.
These videoconferences generally allow the use of any interactive technology that sends or receives video, audio, and data so that two or more individuals can communicate with each other contemporaneously from different locations using cameras, microphones, speakers, cellphones, laptops, and even iPads. Definitions and language from the Tenth Judicial Circuit of Alabama Administrative Order No. AO 2020-031. Presiding Judge Elizabeth French.
Throughout the country, differing jurisdictions either require specific technologies or make no recommendation as to the technology to be used. Obviously, the best solution is uniformity of the platform throughout the jurisdiction and, at this point (as the technologies are forever and quickly changing) the best solution seems to be Zoom software. Zoom allows document sharing, chat, breakout rooms, and waiting rooms, among other significant advantages that lessen, but do not eradicate, technical difficulties.
So, let’s address some of the problems and solutions from around the country:
Problem #1: Not knowing what the court expects
Solution: Request a status conference.
Request a status conference to be set virtually so you can determine the court’s expectations and address any initial problems you may come across with technology during the virtual conference. Request an additional pretrial conference ten days before trial to ensure all requirements have been met and any last-minute glitches can be identified and resolved.
Problem #2: Technical difficulties
Solution: Patience and practice.
Prior to virtual court hearings, lawyers were only required to be lawyers. We did not have to take on the extra jobs of stage manager and lighting director—without the extra pay! But now it is critical to ensure that cameras are angled in just such a way that the judge can see as much—or as little—of your client as you wish. But this should be determined long before the actual hearing begins. If the client will be attending at your office (which is strongly recommended) or at a remote location (only if absolutely, positively necessary), practice, practice, practice with your client so he becomes familiar not only with the technology, but also with the camera placement and procedure. Though all of us have experienced the judge saying she is not negatively influenced by technological difficulties, we all know the court will be distracted by a witness in too dim lighting or if she can only see the witness’s forehead. This is also one of the many other reasons to have the client in your office during the proceeding. You can control that there are no crying babies, barking dogs, or UPS men ringing the doorbell.
Problem #3: Compelling witnesses to testify virtually
Solution: Subpoenas with explicit instructions
We have all experienced difficulties getting witnesses to testify in domestic relations cases. Obtaining testimony from witnesses in virtual hearings can be even more problematic. With one very clear exception discussed below, the subpoena should direct the witness to appear at a time certain at your office. In addition to being able to control the condition of the testimony, you can also ensure that there is no dead time waiting for the witness to appear and no concerns that the witness’s computer, smartphone, or other device has video conference capabilities. Should the witness decline to appear at your office and demands to testify from her home or office, you should, days prior to trial, confirm the witness’s device can support the software for the hearing and provide the software for free to the witness. Any of your remotely testifying witnesses should have his email and phone number provided to the court so the court can contact the witness for inclusion in the hearing so there will be no question that attempts were made by the court to include the witness in the hearing.
Problem #4: A hostile or perhaps dangerous subpoenaed witness
Solution: Partial in-person hearing
This is obviously a case where one does not want the witness in your office; if your concerns are that the hostile witness might “forget” or his computer might “break,” your alternative is, after contacting opposing counsel and explaining the situation, to petition the court, because of extraordinary circumstances, to have that witness’s testimony in the courtroom. This provides you the ability to clearly exhibit the witness’s hostility to the court and provides the added benefit of protection for you and your client from the court bailiff.
This petition for in-person hearing should not only be used for testifying witnesses, but also should strongly be considered when filing a Rule Nisi or Contempt of Court hearing proceedings. A judge in a computer screen has a lot less options for punishment in a contempt hearing than does one sitting fifteen feet in front of the contemptor. If there is a trial for contempt, it is much easier for the bad guy to wind up in jail if he is immediately cuffed in the court’s presence by a bailiff than if the judge politely directs him to report to the jail by 5:00 p.m. Of course, if the hearing is held virtually (over your strong and strident objections) and the judge directs the bad guy to report to jail and he does not, one can always request that the contemptor receive a complementary ride to the jail in a government vehicle.
Problem #5: Being unfamiliar with the witnesses
Solution: Government IDs and pretrial research
Discovery during the pandemic appears to have been much less fulsome than during our normal trial preparation pre-masks. There may be witnesses called by opposing counsel that neither you nor your client knows. At the original status conference referenced above, request an exchange of witness lists and phone numbers at least seven days in advance of trial. This will give you an opportunity to research the witnesses and hopefully find images of the witnesses on the internet. That, coupled with a government-issued I.D., should be sufficient to quell your clients’ concern that the other side has brought in a “ringer,” and that the correct person is actually who he asserts to be from the virtual witness box.
Problem #6: Not knowing who is in the room with the remote witness
Solution: Declarations and 360° camera revolution
A major issue in all virtual trials is the uncertainty as to who is in the room with a remotely testifying witness. Is there another lawyer or other individual standing just out of camera range? Some judges address this issue by simply having witnesses turn the computer so the court can see that the room is empty. This is, of course, a short-term fix as someone could walk into the room immediately thereafter. Is someone feeding answers or prompts to the witness? Is the witness receiving texted answers to cross-examination questions on his cell phone he just places up against the computer but out of view? The best solution seems to be a question from the judge at the time the oath is administered as to (1) Who is present and can hear the proceeding; (2) Will the witness assert that he will receive no help from any source, being text, email, or other written communication or person; and (3) At the send of that witness’s testimony, again have the witness testify under penalty of sanctions and perjury that he has received no help from any source during his testimony. Though we cannot prevent such shenanigans with remote witness testimony, we can at least invoke a modicum of fear that there will be repercussions for such behavior from a witness.
Problem #7: Use of exhibits
Solution: Counsel cooperation and Bates stamps
Exhibit exchanges are problematic at all times, but the same fixes can be implemented in virtual hearings as those for in-court proceedings. If the court does not have a standing scheduling order, request at your initial status conference (that you asked for as soon as you learned of your upcoming virtual hearing) that all exhibits be exchanged fourteen days before the virtual trial. When your exhibits are produced to opposing counsel, always, always, always Bates stamp every page that is sent. In a virtual trial it is much easier to refer to a numbered page than a described document. If there is no valid objection from your client, it is always best to stipulate to the admission of documents rather than requiring custodian of records to prove authenticity. Judges are irritated with that necessity in an in-person trial; they tend to be more irritated with lawyers that require it, with no good reason, in virtual trials. Though documents are often shared electronically between counsel, you should confer with opposing counsel and decide jointly how to provide the exhibits to the court reporter—whether electronically or by printed copies days prior to trial. Also, in that early status conference you are going to have to determine whether and/or how and when the court wants copies of the exhibits. Obviously, exhibits in trial may be published by requesting permission to share a party’s screen, but ask if the judge prefers you to send hard copies or email a copy of the exhibits to the court’s judicial assistant to be shared on the court’s screen.
Problem #8: Technical issues
Solution: Immediate notification to the court
If at any time an attorney realizes that the audio or video is so poor as to interfere with his ability to see or hear the proceeding, the attorney experiencing the problem should immediately notify the court’s office, via telephone, such that the proceedings may be stopped and resumed only after the problem has been fixed or have the hearing be continued to another day. A failure to notify the court of the issue could be considered as a waiver of the issue on appeal.
Problem #9: Not wanting a Zoom trial
Solution: Don’t have one!
In most states, the courts have determined there is a compelling reason to implement special rules allowing, but not requiring, virtual court hearings. Usually, the judges are given discretion to require nonjury court proceedings be conducted by videoconferences. However, in many jurisdictions virtual hearings are problematic, particularly in domestic relations cases. Appellate courts throughout the country adhere to the “ore tenus” rule, sometimes referred to as the appellate presumption of correctness for the trial court’s decision. The ore tenus rule is a legal presumption that a trial court’s findings of fact are correct and should not be disturbed unless clearly wrong or unjust or “plainly and palpably wrong.” This rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses. But a virtual trial often does not allow the trial judge the opportunity to fully evaluate and consider a witness’s “demeanor” as the court could if the witness was in the actual courtroom with the judge. Consider the following: A lawyer is well aware that her client’s fidgeting or foot tapping or cuticle picking clearly telegraphs his nervousness when certain critical questions are asked, and a judge would be able to see such. The lawyer positions the camera so only the client’s face can be seen by the judge, thus denying to the court the very essence of that upon which the ore tenus rule is based. In an open courtroom setting, a trial judge has the ability to smell if a witness reeks of alcohol, or marijuana, and would certainly take such into account when weighing the credibility of a witness. But at this point, Zoom does not provide “smell-a-vision.” Once again, the court is deprived of that which cloaks his very decision with such reverence. Consequently, at the first instance that the court issues an order that your trial will be held virtually, after explaining to your client why you are doing so, an objection to such virtual hearing should be filed with the court with a request for a hearing on the motion. Before the hearing, research your state’s case law and find several of the cases that most eloquently expound on the importance of the trial judge’s “evaluation of demeanor and credibility.” If the trial judge dismisses the motion and requires the virtual trial, your appeal grounds are strong, as is your argument that the trial court’s decision should have no presumption of correctness.
Here’s hoping that by the time you read this, our article will no longer be more than an intellectual exercise.