Put yourself in the court’s position. Everything except for true emergencies has been continued. So as courts turn to technology and start handling cases other than emergencies, ask yourself, “What can I do that might help the court?”
I suggest you consider offering the court four stipulations: (1) I will send the court a prehearing submission; (2) I will agree to a time limit; (3) I will not interrupt and will agree to save any objections until the end; and (4) I will send the court a proposed order. These stipulations may seem unusual. But these are unusual times calling for innovative solutions.
In our most recent webinar, more than 90 percent of the 742 attorneys polled responded “Yes” to the question of whether their courts had suspended speedy trial deadlines, statutes of limitations, or any other deadlines. If the other side balks, offer these stipulations anyway. My guess, from the perspective of a former judge, is that they will be welcomed.
First, your pretrial or prehearing submission should be one page, giving the court the view from 30,000 feet. It should succinctly outline your position and the authority for it. The only attachments should be aids to the court such as a timeline, docket entries, or maps and diagrams. It is a rifle shot, not a blunderbuss.
Second, offer the court time limits. If your prehearing submission is well crafted, I would suggest each side get four minutes, then two minutes each to respond, plus three minutes for questions from the judge. A lot of persuasion can be packed into that time if your words are chosen with care. After all, the Gettysburg Address lasted around two minutes.
Third, agree you will not interrupt. In certain cases, you might agree to save all objections to sort out at the end. This generates the most controversy. I admit this will probably work best for argument-only hearings or bench hearings with limited testimony.
Here is my argument. Most videoconferencing platforms involve lag time between speakers. The usual back-and-forth with outright interruptions and objections results in a choppy, hard-to-understand hearing. With multiple counsel on the call or video, it is even worse as some platforms defer to the microphone with the most noise. Some platforms allow the judge, as host, to mute microphones. In order to object, you would have to raise your hand. This also assumes you have video. Some courts will be able to do only audio hearings.
The advantage to you is that you don’t get interrupted. Subsequent events may cure your objection—and wouldn’t you rather have time to think and formulate your argument? Finally, isn’t this the way we always have done depositions? Don’t you find that you or the other side withdraws most objections when sorting them out before the judge?
Finally, help judges with their case backlog by drafting a proposed order. Each side submits one. Grant yourself the relief you are seeking, include any findings of fact in support, and cite the law for the judge. It gives the court a jumpstart on an opinion.
How Can I Help?
Many of you do pro bono work that has been affected by the pandemic. If you are interested in how you or your firm can help a legal services attorney secure a two-hour coaching session on remote advocacy at no charge, log on to NITA’s One-on-One Coaching page, select “VIEW DETAIL” and scroll down to “NITA’s PRO-BONO INITIATIVE.”
Hon. Mark A. Drummond (Ret.) is an associate editor for Litigation News.