As I write this in early March 2021, approximately 15 states have “opened up.” Although these states have opened back up for business, courts have not jumped on the bandwagon. In my home state of Texas, for example, the Texas Supreme Court issued a new emergency COVID order stating that the presiding judge of each administrative region would have to decide whether that region would open up, and, even then, each judge could further decide on his or her own how to handle in-person hearings and trials. All the while, the Texas Supreme Court stated that it would continue to hold arguments by Zoom. Thus, Texas attorneys are left with a looming mix of virtual and in-person court appearances depending on each court. This scene will begin to play out all over our country as 2021 progresses.
In this article, you will learn what steps you need to take to be successful as we transition into a new normal. I dare not say that we will transition back to all in-person hearings, as I hope that judges and lawyers alike have learned the benefit of virtual hearings for several types of matters. I believe the new normal of courtroom practice will include a mix of virtual hearings for matters that don’t require the attorneys to be literally standing in front of the judge. We will see in a year if my prediction comes true. In the meantime, you will need to get ready for this coming transition, no matter what it looks like.
While this pandemic has transitioned just about every court appearance into a virtual or telephonic hearing, attorneys have generally been more relaxed in front of the camera and, quite frankly, not as prepared. Of course, this is an over-generalization that is not meant to cast all of us attorneys in one light, but I have generally seen a more lackadaisical attitude by attorneys in Zoom hearings, from their dress and mannerisms to their preparation and presentation. Judges have been quite understanding, but this understanding will not be extended forever. As we transition into the new normal, judges will expect lawyers to get back to being fully professional, whether they appear in front of the camera or in front of the judge.
Being prepared is the most important key to being successful, but being prepared is more than just knowing your case. Because we will have different courts with different rules regarding appearances, you must know each court’s rules and note your calendar with more detail than you may have done before. You will need to plan how you will handle having both virtual and in-person appearances in the same day. How will you handle a 9:30 am virtual appearance in one court followed by a 10:00 am in-person appearance in another court? For those of you who often had hearings all at the same time in the same courthouse and ran from courtroom to courtroom checking in everywhere and then deciding which court to handle first and so on, how will you handle a diversity of docket types now? If you have become adept at Zoom on your computer, you will need to become adept at Zoom on your phone because you may have to appear at a Zoom hearing in the hallway of your courthouse before walking into the courtroom of another court.
How you handle your docket is not something you want to figure out on the fly when it hits you in the face. Now is the time to start thinking about these things. You may want to ask the individual courts how they will be handling attorneys with different dockets at the same time. Will those judges who have virtual dockets be forgiving? I have heard of attorneys who now have to check in to three or four different virtual hearings at the same time because the judges expect on-time appearances on their virtual dockets. How will that work when there is a mix of virtual and in-person dockets at the same time (or close in time to one another)?
In conjunction with being prepared to appear in different ways before different courts, you will also need to be prepared to present your cases accordingly. If you have a virtual hearing that will require the presentation of documentary evidence and you are at the courthouse, will you bring your computer along with you and have that ready to go? Will you make sure that you have your paper exhibits ready for your in-person hearings the same day? You will need to be on top of your clients and witnesses regarding how they should appear for each hearing—virtually or in-person. Plan now for additional administrative support to help you with preparation for each hearing, including evidence and witness preparation and “herding cats.” Rather than having to contact everyone yourself about where they should be, you may want to have a part-time virtual assistant who helps you deal with such contacts to make sure everyone will be where they need to be at the right time.
As we have learned throughout our careers, those who are prepared often do better than those who aren’t. Thinking you can wing it in the new normal will not serve you or your clients. You can’t just be prepared substantively and leave logistics until the last minute. Look at next week’s calendar this week and get everyone lined up accordingly. Any communications to clients or witnesses should just be check-ins, not first communications about that court appearance. The judges will notice which attorneys are prepared, and I know for certain they will appreciate your preparation.
Be Proficient in Appropriate Technology
Attorneys have had a year to become proficient in the technology of virtual court appearances. If you have not regularly had court appearances in the past year and thus have not been on the spot in front of a judge using such technology, now is the time to practice with friends, family, or colleagues. When judges are having to deal with crowded courthouses again and going back and forth between virtual hearings and in-person court matters (such as trials), they will not have the same patience for someone who doesn’t have their technological act together. Dockets will need to move, and none of us (judges, lawyers, parties, witnesses) can afford to have a docket or hearing slow to a crawl because someone doesn’t know how to use the technology.
This applies to lawyers, parties, and their witnesses. From what I have seen, judges are proficient now at using this technology. Those judges who have not used it by now probably will not in the future, and they will get back to in-person hearings as soon as they are allowed. For the judges who have conducted virtual hearings and trials, we will not have to worry about their use of the technology. As a lawyer, you must not only be proficient in the technology, but you also must make sure that your clients and witnesses are proficient. Judges will not simply reschedule hearings in the future just because someone can’t take their mike off mute or because someone doesn’t know how to operate the camera so that the judge can see them. I have already seen judges require that everyone appearing in front of them virtually have their camera turned on or they won’t consider that person’s appearance.
If you can’t personally handle training and coaching your clients and witnesses on the technology, now is the time to think about part-time virtual support to help you with that. It’s not enough to tell the clients and witnesses to go to the respective websites of the makers and vendors of the technology to read or watch videos on how things work. We all know the success rate of getting others to do that. The most effective way for clients and witnesses to be prepared to use the technology is to have someone work with them in a training or sample session where they can try out the various techniques of turning on and off the mike, turning on and off the camera, where to position the camera, how much light there should be, appropriate use of virtual backgrounds, and having the presenter present documents or share screen and having the client or witness be able to see what that looks like and how to testify about the document being presented on the screen.
You should consider technology training as part of the onboarding process of a new client with your firm. While you may want to direct your clients to videos on the Internet, you may also consider making videos with screen capture software so that clients can see you using and explaining the technology. You can direct your clients to the videos (whether they are existing videos of others or your own videos) followed by a practice session with you or your support staff. Additionally, when someone checks in with your client before the hearing, the question should be asked if they remember how to use the technology and remind them to brush up on it by watching the video again.
As for non-client witnesses, you truly need to have a practice session with them, whether it’s done by you or your support staff. Don’t have your client become angry about the outcome of the hearing because the supporting witnesses were ill-equipped to handle the technology of virtual hearings and thus could not appropriately testify or present evidence. Even your custodian of records who will simply help you get documents into evidence needs to be prepared for the technology. Can you imagine not getting important documents into evidence because your witness could not answer the prove-up questions due to poor use of technology?
As you can tell, I cannot overemphasize the need to be proficient in technology for the coming new normal. Don’t take my word for it, though, as most rules of professional conduct these days have a rule or comment about the need for lawyers to be proficient in technology as part of their professional responsibilities. Not being prepared to properly use the technology could get you into trouble with your state bar or client. The last thing we need is a grievance or malpractice claim simply because we weren’t prepared to handle the technology of virtual appearances!
Be Kind and Forgiving
As a profession, we became kinder and more forgiving during this pandemic. Our attitudes and emotions were in check more so than when we were having in-person hearings. We were more courteous about extending deadlines to respond to discovery and continuing hearings or trials due to the drama and tragedy of the pandemic. I encourage you not to lose that when we get back into in-person appearances. Just because the way that we present our matters to the court may change doesn’t mean that we all didn’t experience this pandemic together.
If I were to sit down with you right now and we were to talk openly and genuinely about how the past year has affected you and me personally and professionally, emotionally and economically, and mentally and physically, we’d share unique stories that will never go away simply because the pandemic will go away. Those experiences and stories will stay with us, and you must remember that each of us has them. Some have lost friends, colleagues, and family to COVID. Some have lost their practice because of COVID (I have seen several attorneys close their practice and move to a firm, government agency, or legal aid organization). Some have been afflicted with COVID directly. However COVID has affected us, the fact remains it has affected us. There can be no truer statement than that.
Let’s be the attorneys that our professional creeds and rules truly want us to be, not the kind that our one-track clients think we should be. Let’s extend our helping hands and forgiving hearts far beyond this pandemic because none of us will be coming out of it the same way we went into it.
Not only have we been impacted personally, but the profession and administration of justice in our country have been impacted. Technology experts agree that we jumped many years farther ahead in our use of technology in a single year than we would have if the pandemic had never come. That means there is no going back to doing only in-person hearings all the time. The new normal will require a new judicial efficiency that makes use of technology for appropriate matters while keeping in-person appearances for the most important matters, such as trials and complicated hearings. While I believe we will need to be prepared and be proficient in appropriate technology, there will still be a lot of room to be kind and forgiving. There will still be cause to agree to discovery extensions and trial continuance. There will still be the need to pick up the phone and talk to one another rather than sending an angry e-mail. There will still be the need to be sensitive to what others may still be going through or to what they permanently lost as a result of this pandemic.
It all still comes down to the Golden Rule of treating others the way you would want to be treated. If your ego or brain is too big to care about the way you are treated and thus your idea of the Golden Rule is warped, then just remember that our professional codes of conduct and aspirational creeds require us to be kind and forgiving without materially hurting our clients’ cases.
To be successful as we come out of the pandemic, now is the time to get ahead of the game. Start determining how each of your courts will be proceeding in the future. Ensure you and your clients are proficient in the technology used for virtual appearances. Hire part-time help if needed and start having your technology practice sessions with your clients and witnesses. Finally, take time to think about the toll this pandemic has had on all of us, and be prepared to be kind and forgiving when handling your cases with opposing counsel.