June 09, 2020 Articles

Best Practices for Remote Hearings

A summary of resources and best practices to aid practitioners facing the new reality of operating remotely.

By Alejandra Loaiza-Delgado and Abigail Busse

The COVID-19 crisis forced courts to postpone hearings, depositions, and trials, and the disruption to schedules is likely to have lingering effects. Given the complex and rapidly changing situation concerning COVID-19, individuals continue to work to develop best practices and engage key participants in hearings remotely. Courts have issued guidelines regarding changes to their practice in response to COVID-19. We have summarized resources and best practices to aid individuals facing the new reality of operating remotely.

The United States Courts website provides regular updates regarding court business and operating status. Although guidelines vary by jurisdiction, individuals must prepare for conducting remote hearings. To facilitate this transition, resources regarding best practices for remote legal proceedings have been published to address concerns, benefits, and strategies. Further, the CARES Act authorized the use of videoconferencing and telephone conferencing, ending 30 days after the date on which the national emergency ends or when the Judicial Conference decides that federal courts are no longer affected, whichever comes first.

Specific Rules and Announcements

  • U.S. Supreme Court: On April 13, 2020, the Supreme Court issued an announcement that it would hear oral arguments by telephone conference for hearings in 10 of its 20 postponed cases. On May 4–6 and 11–13, all justices and counsel participated remotely, and the live feed of arguments was available for public access.
  • Northern District of California: The court issued general orders stating that all civil matters will be decided on the papers, or if necessary, hearings will be held remotely.
  • Delaware Chancery Court: The court issued standing orders that included the postponement of all in-court appearances, with necessary proceedings occurring via telephone or video; continuation of rulings on motions not requiring in-person appearance; and continuation of filings through the e-filing system.
  • District of Delaware: The court issued and revised standing orders that postponed civil and criminal jury trials pending further order. Individual judges have been allowed to continue to hold hearings with discretion by telephone or video when practicable and permitted by law to avoid unnecessary travel.
  • Southern District of Florida: The court issued administrative orders stating that the courthouses would remain open, with reduced staffing, to continue essential operations. Jury trials were postponed until July 6, and deadlines were postponed until further order of the court or by the discretion of individual judges.
  • Northern District of Illinois: The court issued general orders postponing deadlines in civil cases and executive committee matters. Appeals, hearings, bench trials, and settlement conferences scheduled through May 29 were vacated or directed to occur remotely if deemed urgent.
  • New York Commercial Division: The division issued memoranda that included the suspension of trials for which opening statements have not commenced, suspension of jury selection, and minimization of courthouse appearances.
  • Southern District of New York: The court issued standing orders allowing criminal cases to proceed with guidelines regarding persons present, seating arrangements, and allowance of telephone hearings.
  • Eastern District of Texas: The court issued general orders regarding the use of video and telephone conferencing for various criminal proceedings until further court order.
  • Eastern District of Virginia: The court issued general orders regarding the postponement of civil and criminal in-person proceedings and authorization of telephone conferencing or videoconferencing for certain urgent circumstances.
  • Eastern District of Washington: The court issued general orders stating that in-court appearances through May 15 were vacated and that deadlines for these cases were suspended. Hearings set for telephone or without oral argument remained unaffected.

Best Practices

  • As the guidelines regarding court proceedings and work flow change almost daily, it is important to frequently check court resources for specific policies.
  • Email the link to the remote hearing to only those participating in the hearing and consider using a password.
  • Connection speed is critical—the connection needs to be a minimum of 20 megabits download speed and 5 megabits upload speed. Check your speed here.
  • Ensure familiarity with the virtual platform (e.g., document sharing, screen sharing, request control).
  • Prepare a workplace with a neutral background and sound-limiting barriers to limit distractions or interruptions that may occur during home videoconferences.
  • Adjust the camera to your eye level. For videoconferences, eye contact is essential.
  • Call into any hearing 10–15 minutes in advance.
  • Remind the participants to speak one at a time and to pause prior to speaking in case there is any lag.
  • If you are not speaking, be sure to mute your line to limit noise.  
  • Ensure the virtual platform is set to “Do Not Disturb” to avoid alerts or background noises.
  • Establish an additional connection to maintain contact with clients during the proceedings separate from the official conference.
  • Treat a remote hearing with the seriousness with which you would treat an in-person hearing.
  • Be flexible. Things may go wrong, and all participants may need to be extra patient and understanding.
  • If you intend to offer any exhibits during the remote hearing, check out the section below.

Using documents as exhibits remotely:

  • The documents must be in PDF format and pre-marked (or saved) by exhibit number.
  • Sharing of documents is best done via full or side-by-side (split-screen) sharing (available on most videoconference platforms) to enable participants to be seen during the presentation of documents.
  • When sharing your screen and changing screens, confirm that changes are visible to participants before speaking, in case there is any lag.
  • Many platforms, including Zoom, allow for features including “new share” (start sharing a new document), automatically configuring side-by-side mode, and sharing multiple screens simultaneously.
  •  Skype provides an option to “preload” attachments for a Skype meeting that will be visible only when the meeting starts.
  •  In addition to the presentation of evidence during a hearing, parties may be requested (in advance or after the hearing) to send—via email or an online file sharing service (e.g., Dropbox)—copies of all documents that will be referenced throughout the hearing.

Additional Resources

This article is intended to be used for general informational purposes.

Alejandra Loaiza-Delgado is a director and Abigail Busse is an associate at Ankura Consulting Group.

Ankura is the Litigation Advisory Services Sponsor of the ABA Section of Litigation. This article should be not construed as an endorsement by the ABA or ABA Entities.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).