Before the pandemic, there was already a steady decline in the number of cases that ended in trials. According to one 2011 study by the Pound Civil Justice Institute, civil trials have been on a path to extinction for decades. Similarly, a 2018 study by the National Association of Criminal Defense Lawyers revealed that over the last 50 years, 97 percent of cases were resolved through plea deals, and defendants only chose a trial in less than 3 percent of state and federal criminal cases. Thirty years ago, 20 percent of those arrested chose trial.
The COVID-19 courthouse lockdown accelerated these trends. Walking into a courtroom or taking an in-person deposition are no longer options in many jurisdictions. When they are, the proceedings are often limited to counsel and those deemed “necessary” by the court or whomever is conducting the event.
Concerned that having judges, parties, counsel, witnesses and jurors in close proximity for hours or days, courts have limited or eliminated the option of having in-person trials or pre-trial events. As a result, an ever-increasing percentage of other events—including hearings, depositions, mediations and even appellate arguments—are being conducted virtually. Lawyers who do go to trial in the post-pandemic world must use technology to try to win their cases. That means trials are often held using Zoom and other similar remote conferencing software. The paper option has literally disappeared.
The virtual elimination of in-person trials has been a shock to many advocates. To more senior lawyers, preparing for trial meant spreading out transcripts and piles of documents on a conference room table, preparing trial notebooks, printing paper exhibits, and filling their trial briefcase with countless reams of paper—all to ensure that every necessary, or potentially necessary, document is ready for deployment. It also meant that advocates could gauge their opposition based on in-person observations during depositions and hearings. The dynamic changed completely, however, when all these events went virtual.
Remote conferencing makes it harder, if not virtually impossible, to make direct eye contact, to view body language and to “control” the room. This column will address those problems and many others relating to virtual lawyering—not the substantive how-to, but all the background details so crucial to presenting yourself, your client and their case convincingly over the internet.
Adjusting to Virtual Litigation
Over the years, the use of trial software, high-tech courtrooms and devices such as iPads slowly transformed trial presentation into a more high-tech event. But even then, many lawyers relied on the piles of paper, still imagining themselves pulling out the “Aha document” and gaining the game-changing admission from a witness that wins the case, like a real live version of Matlock.
Digital tools have become a necessary part of the litigation world, but with their use come problems. First, we have the basic issue of videoconferencing products, with Zoom the poster child for pandemic-related solutions. That Zoom had security issues seemed of no concern initially, until law firms and others found themselves as victims of Zoom bombing, that is, unwanted intrusions, often obscene, during videoconferences.
Suddenly, having a secure videoconferencing platform became critical. The preliminary but crucial need was easy to assess, and even easier to address, with help from the government. The National Security Agency has created resources to help avoid the dangers of the cyberworld, including guides to analyze the various web-conferencing services and tips to protect against malicious cyber actors.
Presumably, most litigators have overcome their initial fear of the online world and have instead discovered that their world is a cyberworld. As a result, they can turn to their real focus—trying and winning cases virtually, with the recognition that many of the changes the pandemic has wrought will never go away.
For example, many of the time-wasting events that lawyers have suffered through, like the five-minute status conference that required in-person attendance, are likely a thing of the past, as are many other perfunctory events where in-person attendance was required but unnecessary. In addition, it is safe to say that courts have discovered the advantages of holding many events virtually, and that more events will be virtual in the future.
But those events are the preliminaries. The key is adjusting to an online world where depositions, key hearings (such as oral argument on dispositive motions and appeals), mediation and trials are handled in a virtual world. Therein lies the rub.
The problems are obvious; how to handle them is more of a challenge.
Positioning Your Webcam for Eye Contact
The primary problem with webcams remains making eye contact. I recently received an email from a colleague in which she accused me of not looking at her during a recent Zoom call. I was. The problem was the position of the camera, something often overlooked.
The first rule is, “Don’t use your phone.” Use a computer’s camera or a webcam. Even better, if you can, have a separate camera setup, especially for important events such as oral argument or video depositions.
Second, position your camera as close as possible to the center of the screen where the person you are speaking with appears. Generally, positioning your camera dead center on top of the screen is best. If you use multiple screens, it may be more of a challenge making eye contact, however, so it is best to practice.
If your office participates in frequent online hearings and other proceedings where appearance is critical, consider creating a telepresence room. This type of room is a very controlled environment where the placement of every screen, camera and seat is calculated to optimize eye contact and other social cues.
Third, if you are running software to capture your conference, set up the software for full-screen capture and position yourself with a little distance between the camera/screen and you. The farther away you get, the better the eye contact feels, but at a cost of appearing farther away and being less intimate.
Fourth, make sure your lighting is good, so that you do not look like you are in a closet or a sunroom. If lighting is an issue, consider purchasing a separate light. Many online stores sell USB-powered LED ring lights, which come with adjustable tripod stands. When set up properly, you will look like you are a professional announcer.
Finally, consider using software that can clean up some of the rough edges. My preference is YouCam, currently in version 9. This software integrates with most videoconferencing products, including Zoom, Webex and Facebook. YouCam will apply real-time visual enhancements (think video makeup) that can make a remarkable difference in how you appear.
Controlling the Zoom Room
Consider how much you prepare for a hearing, deposition or trial. To be ready, you consider every aspect of the event. You review the file, prepare questions, get witnesses ready. Then you plan, and plan, and plan. And having taken countless depositions, or been counsel at dozens of trials, you understand how to control a witness in a conference room or in the courthouse to get the best results.
Then along came Zoom. Suddenly, the techniques you used in person are less effective when working remotely. If the event is without video, the challenges are even greater. But they are present, and are not going away, certainly not in the next few years, if at all.
Consequently, lawyers must adapt and determine how to translate their in-person skills to the cyberworld. Here are some suggestions.
First, prepare. Like in-person trials and other events, positive results do not happen by accident. Good remote meetings do not happen by accident.
Second, use the camera. Consider the videoconferences where some participants do not show their faces. What are they doing? Are they even paying attention?
Seeing another person’s face is a better experience than just hearing their voice. While being on camera does not guarantee results, it helps you determine whether the other party is focusing on you, or playing games on their phone, or perhaps putting away laundry.
Third, always look at the camera. In addition to the techniques already listed, looking at the camera maximizes your perceived eye contact. If your laptop or webcam has a light next to the camera lens, look directly at it, as though the dot were the eyes of the person you are speaking to. Although you are looking at the dot, others will believe you are looking directly at them. It is how TV announcers always look as though they are speaking with you.
Fourth, remember the techniques you used in person and use them online. Do not use shortcuts or eliminate the types of questions and interaction you would have used in person. Just because you are interacting remotely does not mean there is a meter running and you must work more quickly or that you have to eliminate questions or comments. Be yourself.
Fifth, set the rules, and enforce them. When you begin, make sure that you set the rules, just as you would in person. If you are in a situation such as oral argument, make sure you know and follow the rules. But if you set the rules, you must also rigidly enforce them to allow the interaction to proceed the way you want it to.
Finally, stay focused. Never lose track of your purpose.
Trying the Zoom Case
Now that you know how to set up your cameras and control the room, it is time to mediate, arbitrate or try the case. Here are some keys to help maximize your success.
First, prepare. As mentioned before, nothing is a substitute for preparation. Prepare your opening statement, prepare your closing statement, prepare your witnesses and everyone else, just as you would in person.
Second, premark all exhibits, and be prepared to share them. When you share exhibits, be sure you display the correct screen to avoid sharing your trial notes or other preparation materials. If need be, practice sharing your screen before trial so that you are comfortable with the technology. Also, create an exhibit list that is accessible to you, the judge, counsel, and if necessary, the court reporter.
Third, be sure that everyone else knows how to access exhibits and whatever other technology you intend to use. If possible, have someone from your office available to assist. If you intend to show exhibits to your witnesses, make sure they are comfortable viewing documents on a screen or on whatever device you will be using.
Fourth, always watch the screen to be aware if the judge or counsel is trying to speak but may be inadvertently muted, or in case the judge or counsel were accidentally disconnected.
Fifth, use the mute and off-video functions, if permitted. Using these functions reduces the possibility of interruptions from background sounds, such as phones ringing, especially during breaks when you may have discussions that others should not hear. Remember to instruct witnesses and clients to avoid having their comments end up on the record or worse, to avoid others hearing comments that could damage your case.
Sixth, ethics still matter. The Rules of Professional Conduct govern trials, as do the Rules of Evidence and Civil Procedure. Complying with them will always inure to your benefit.
Finally, civility is as important now as ever. Regardless of whether your jurisdiction has adopted a Code of Civility, acting with civility will always benefit you. Treat others with respect, and do not take advantage of your opponent. Judges, arbitrators and juries respect the civil advocate.
COVID-19 has disrupted many aspects of our profession, preventing lawyers and judges from entering, let alone working, in courthouses in every jurisdiction. As the profession slowly returns to its next normal and tries to reduce the backlog of cases that resulted from the pandemic, the likelihood is that many cases will be tried or referred to alternative dispute resolution systems that use online/remote technology. To do so, you must understand the circumstances and prepare to get the best result for your clients.