In an early COVID-19 remote video hearing before a trial judge, the judge became frustrated as the audio and video for one counsel would freeze and counsel’s connection would drop, interrupting the flow of the hearing. Counsel’s screen would then display a “low bandwidth” message to the group participating in the remote video hearing. At the conclusion of the hearing the offending counsel was strongly “counseled” by the presiding judge to get his home internet up to speed. It was as if the offending lawyer had a new social disease—low bandwidth.
We are now more than three months into the COVID-19 world and its impact on the trial lawyer’s job of dispute resolution via arbitration, trials (bench and jury), mediation, and settlements has been quite apparent. This Practice Pointer will address the basics of handling remote video evidentiary hearings, depositions, and conferences with judges, counsel, clients, and witnesses. The information that follows evolved from experience and, most importantly, mistakes made and observed.
Participating in a Remote Video Hearing
Technology and Equipment
Counsel’s effective access to the court is now completely dependent upon the technology available to counsel. Without sufficient technology, counsel cannot adequately participate. Therefore, it is paramount that participants have the following issues addressed in advance:
- Audio and Video. Participants, including parties and witnesses, have access to a computer, tablet, or smartphone. The device employed by a participant must have a functioning camera, speaker, and microphone.
- Connectivity. Participants must know and understand the court’s system requirements. Participants should test the device he/she intends to use on the court’s system prior to the hearing. Don’t be that attorney or participant with “low bandwidth.”
- System Specifications. Participants need access the court’s website to locate specific instructions, the court’s video system’s technical requirements, and other relevant information. These sites will identify the specific video conferencing app, provide participants with instructions on how to download the app, and provide instructions on how to access and use the app. Importantly, the court’s site will outline the video systems.
- Secondary Devices. Participants, especially counsel, have multiple devices available, so one device can access documents and another can handle the video.
- To adequately prepare for the remote video hearing, participants must:
- Make sure he or she has received the remote video hearing invite.
- Make sure any participants who need to be part of the hearing (i.e., witnesses or clients) have received the invitation, so they can also access the hearing.
- Test equipment ahead of the hearing and ensure that the equipment of any clients or other participants, including witnesses, has been tested.
The efficient and effective use of exhibits during remote video hearing has proven to be a difficult task. As a result, counsel should take the following steps to ensure efficient and effective use of exhibits and other documents in remote video hearings:
- Have all exhibits and other documents counsel intends to use as part of the hearing uploaded and available on the court’s video app share function prior to commencement of the hearing.
- Send all exhibits separately in PDF format to the court and opposing counsel prior to the hearing. Counsel should check local court rules for timing requirements.
- Use the available “share function” in the video app as a backup for showing exhibits.
- Be ready to share “rebuttal” or “impeachment” exhibits during the hearing. The share function on the video app and/or sending them separately are both viable options.
During the Hearing: General Tips
- Plan to participate in the hearing in a quiet place, and be aware of your surroundings. Other hearing participants will have a clear view of the contents of your video frame, including items around or behind you.
- Ensure proper lighting. Too much lighting from behind or above can cause a participant to look washed out. It is best to have lighting behind the video device that projects directly on your face.
- Place the camera at eye level or slightly above.
- No one else should be in the room with you without notice and approval of the court.
- If multiple persons are in one room, consider separately logging in to eliminate issues with respect to visibility of participants.
- Sit or stand during the hearing. Do not move around the room during the hearing.
- Run the remote video app on only one device. Other internet connections and apps should be turned off, as they can interfere with the effectiveness of the remote video app.
- Identify all persons participating in the video conference or in the video conferencing space.
- No private communications (i.e., phone, text, or email) with witnesses during a witness’s testimony.
- Do not record the hearing. Only the court is allowed to record conferences or hearings.
- Do not have more than one participant in the same room with separate video apps open. This will cause an echo or other audio-related issues and will impact the hearing.
- Dress as you would if making a physical appearance in court.
- Avoid busy clothing patterns or narrow stripes. These items can create distracting images.
- Be especially careful of talking over the judge, other counsel, or witnesses. This is a more significant problem with remote video hearings, as the audio capability of video apps typically cannot handle more than one speaker at a time.
- Pause before speaking.
- Identify yourself when beginning to speak and after others have finished speaking.
- Look directly into your camera when speaking or questioning.
- Be slow and deliberate in your presentation and questioning.
Witnesses and Exhibits
- Witnesses will need to identify where they are physically located and verify that they are alone in the video conferencing space.
- If a witness is participating in an attorney’s office, the witness should be placed in separate room to avoid audio-related issues.
- Remember: no separate communication with witnesses during testimony.
- Be familiar with the local court rule on remote swearing-in of witnesses. Many jurisdictions have passed new laws or rules that apply when the court official and the witnesses are not in the same physical space.
- Be sure the witnesses have been sent all pertinent exhibits/documents ahead of time so they have them readily available.
- Make sure witnesses can access the video conference and exhibits. Don’t leave them out of the education process on how to be involved in remote video hearings.
- Regular rules apply but be mindful of the difficulties created by the examining lawyer and witness not being in the same physical space.
- Examine in a slower manner, and ask more deliberate questions.
- Use exhibits wherever possible to keep the witness on track.
- Be careful about interrupting the witness.
In a remote setting, it is more difficult to control the witness during cross-examination. Therefore, the usual rules pertaining to effective cross-examination still apply, but on steroids. Participating counsel must:
- Know his/her purpose and goals for the cross-examination.
- Ask well-though-out, short, leading questions that will elicit an admission of one fact per question.
- Liberally use documents to force the witness to admit key facts.
- Listen to the witness’s answers for appropriate follow up.
- Try not to allow the witness to repeat direct testimony or explain answers. It is very difficult to control the remote witness without good, short, one-fact questions.
Ultimately, remote video hearings present a number of challenges for counsel and clients. Because of the learning curve associated with the sudden emergence of remote video hearings, counsel should quickly get brought up to speed on the technological requirements, requisite preparation, etiquette, presentation requirements, and other requirements and expectations associated with remote video hearings to avoid inefficiencies caused by lack of familiarity and/or preparation.
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