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With the advent of COVID-19, many courts around the country are holding hearings and calls via video conference. This is a new way to litigate for many of us and, as with all trial skills, practice makes perfect. Take the time now to get your technology up to speed, learn to use the software involved, and set up a dedicated space for video calls and hearings so that you are ready when you receive that first notice.
Get Your Tech in Order
First and foremost, buy the equipment you need and understand how to use it. Remember that all lawyers have a duty of competence when it comes to the technology we use in our practice (ABA Rule 1.1 Comment 8). Once you have the equipment in place, download the very latest version of the software you have been ordered to use—and then frequently check the internet for updates to stay current. All of the software works fairly similarly, but do not assume that if you know one, you know them all. It will take a while to learn how to use the equipment and software to produce a seamless presentation, but that is all the more reason to get everything you need and start to practice now.
Have Your Exhibits Ready in Advance
As with any hearing, a smooth and effective presentation requires that you have all of your exhibits prepped in advance. Practice sharing exhibits from your computer using the software the court has designated. You might also try sharing from a tablet, phone, or using a second camera to see what works best for you. Of course, exhibits should be in PDF format. You might want to put your exhibits into a PDF Portfolio so that you can more easily flip between exhibits in share mode without having to open the individual files.
For added organization, label your exhibits with their exhibit numbers as the file name and put them in a Dropbox or Google Drive folder. Make the link to the folder publicly viewable for anyone you send it to. If you want to make it even easier for others to identify the link, customize it for each hearing using tinyurl.com. You can use this site to create an alias for each hearing, for example, “tinyurl.com/JonesContemptExhibits.” Make sure to check the local rules for exhibit format and sharing—there may be new rules for video hearings. Some courts may require you to send a link to the exhibits to their staff and/or opposing counsel in advance of the hearing.
Audio Is Everything
You can’t advocate for your client if the judge can’t hear you. You will also be far more persuasive if you don’t sound (or feel) like you are yelling across a canyon. Some easy tips for this: Use a headset with microphone for more direct vocals or a separate higher quality mic on a stand on your desk. If you are going to be moving around while speaking, consider a lapel mic. During the hearing keep yourself muted unless you are talking, and have your client do the same.
To prepare, run some practice sessions to get the volume adjusted so that you can speak naturally and be understood. Do another mic check just before the hearing to make sure your settings are still the way you want them. Finally, while most of us do not have a recording studio available, consider the acoustics in the room where you will be during the call. For the best quality sound, find a spot that is small, with few (or no) windows, soft floor and wall coverings, and upholstered furniture. Think about that interior office that is the size of a broom closet, or, if you are going to be at home, your actual closet. Keep in mind that there will be ambient noise that you cannot anticipate or control. Try to find a place where this is kept to a minimum. Record your practice sessions and listen to them with a headset to see what adjustments you need to make to reduce as much of this noise as possible.
Look the Part
Regardless of your actual location, you want to represent your client in the most professional way possible. The easiest way to do this is to always dress as if you were before the judge in their courtroom. This is good practice even if it is just a scheduling or other non-hearing video call.
The rest of your appearance will depend on camera angles, distance, quality, and lighting. As with audio, record yourself with a number of backgrounds, lighting situations, clothing, and seating or standing arrangements to see which one makes you feel and look most like you are in court. To enhance your appearance on video, let your technology do some of the work. In Zoom, for example, you can go into video settings and click on “Touch up my appearance” to make your skin look flawless.
Your background matters as well. Simple is better—you do not want to distract from your client’s case. If a virtual background is an option, try using your firm logo. Of course, don’t have anything in the vicinity that might be picked up by the camera that you wouldn’t want the judge or parties to see. This includes your notes.
Prepare Your Client
Once you are comfortable with your own setup, walk your client through everything they need to know so that they are presented in the best light possible. Even if you are in the same room during the call, if they are using their own device or equipment, make sure that it is set up properly. There is a good argument to be made for using a second computer or camera for the client even if you are in the same location so that both of you can face the camera head-on and be clearly seen throughout the entire hearing. If there is more than one computer or device logged onto the call in the same space, make sure to mute the audio on all but the one you are using for sound to eliminate feedback.
One of the biggest challenges during a video hearing is communicating with your client while on camera as you would if you were in court. If you have your client in the same room with you, just mute your mic and talk or write notes. If that isn’t possible, and you each have a second device available, have a separate video meeting or conference call going with just your client that you keep muted unless you need to talk to or message each other.
Once you have determined both your and your client’s setup, run and record at least one practice session with your client so that you can make any necessary adjustments prior to appearing before the judge.
As with your client, in an ideal world, your witness would be in the same room as you during their testimony. If that is not possible, do a practice session in advance with your witness using the same program and the same setting that they will be using during the hearing. Before the hearing, make sure that they understand the rules about their appearance. For example, if they were subpoenaed by the other side, explain that they will need to appear on the call at the time and place on the subpoena to be sworn in, and then they will likely be excluded from the meeting until someone calls them as a witness. Because they won’t be sitting outside of the courtroom where the bailiff can easily find them, make sure to have one or more ways to reach them when it is time for their testimony. If they are at your office, have a separate space for them to wait where they will not hear the proceedings until it is time for them to appear. Don’t forget to have the judge release them when they are finished or bind them over if they need to remain available the next day.
Smile! You’re Live Streaming
Some courts have decided that they will use live streaming on Facebook or YouTube to allow for the public to view hearings. There are numerous problems with this practice, not the least of which is that it is impossible to know who is watching or even recording the hearing. If your hearing is going to be live-streamed, ask the judge in advance what the rules are and whether they will stop the streaming for any reason, such as if you ask to approach the bench or for any other situation where the judge would normally exclude the public from the courtroom.
Ultimately, the issue of public access is one that the courts will have to address—likely with local rules and guidelines about the attendance at, participation in, and recording of these hearings by the lawyers, the parties, and the public.
JoAnna J. Smith is the executive director of Lawyers for Equal Justice in Atlanta, Georgia, and managing partner of the Georgia Family Law Project.
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