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Litigation Journal

Spring 2023: Presentation

Who's Zoomin’ Who?

Lee Stapleton


  • Zoom kept the wheels on during the pandemic, but it seems as though the wheels may now be coming off.
  • Zoom is expedient, but it does not encourage excellence.
  • Zoom should be the last, not the first, choice for practicing law and living.
Who's Zoomin’ Who?
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There is alchemy when people are in a room together—it may be mischief or magic. But, since the onset of the pandemic in March 2020, we, as three-dimensional beings, have been dealing with one another and our profession in a two-dimensional world. Zoom allowed us to carry on—to keep practicing law, to represent our clients, to see and speak with one another. What was once a convenience born of necessity has now become institutionalized.

Zoom kept the wheels on during the pandemic, but it seems as though the wheels may now be coming off. Zoom is expedient, but it does not encourage excellence. We’re litigators—let’s talk about going to court.

During COVID, when everything—meetings, depositions, hearings, mediation, and even trial—was on Zoom, I felt as though I lost my edge. After so many years of practice, I still get a slight case of butterflies when I go to court, even if it’s for a motion to continue. I noticed that when I attended Zoom hearings, I was not even slightly nervous. How could I be nervous, in my nice familiar surroundings, ably assisted by my furry, four-legged paralegals? I was relaxed, and I’m not so sure that’s a good thing.

A Lack of Social Cues

Litigators rely on social cues as well as the law.

There was no pageantry, no ability to observe side action, no opportunity to pick up on nonverbal cues that are telling—scuffed shoes, too much perfume, great highlights, a fabulous suit. Social cues are missed—people are more often looking at themselves than others during a Zoom event. It follows that if you are looking at yourself and not others, you are missing important nonverbal cues—an eye-roll, a yawn, a look of alarm. As an aside, a dermatologist I know said Zoom has been great for business, magnifying every facial flaw and skin imperfection.

Because people are seated, there is no chance to see how a person carries himself or herself. Does a person walk with authority or shuffle along? It’s also sort of weird to not stand up to make objections or arguments. You can’t stand up to make a point. Something I find funny and weird is the digital hand raise—that’s no way to be heard. If a lawyer is relying on notes, looking down at them is more obvious on Zoom—there is no discrete and barely noticeable glancing down to see what comes next. On Zoom, the head dips down, and it’s clear that a person is reading.

There is no opportunity to strike up a relationship with people or to conduct informal business or to sow the fields for new business. Interacting with a screen doesn’t allow a lawyer to get to know opposing counsel, the bailiff, the judge, and, most importantly, the judicial assistant!

Oftentimes, right before or after a hearing, matters get resolved—an informal chat often does wonders for finding a solution to issues or for coming to some accommodation without the court’s intervention. This on-the-fly problem-solving is less likely to occur when you “Join Meeting” and then “Leave Meeting.”

I am both bemused and baffled when younger lawyers tell me with great authority and certainty that anything that can be done in person (at least in a professional context) can be done on screen. How the heck can a neophyte lawyer who has rarely been to court or done an in-person deposition or mediation be so sure of that? Getting in the mix is fun—it’s rewarding; it creates an adrenalin rush. Conversely, the gravity of a situation doesn’t sink in as fully in a non-courtroom setting.

Being in court, up close and personal, is a confidence booster and a confidence crusher in a way that Zoom never can replicate. Great litigators will not be born of Zoom.

Zoom is not that great for clients in many instances. Much is said about how cost-effective it is to do things by Zoom—no travel time, no meal costs, blah blah blah. That may be true if you represent a big corporation, but what about individual clients, even ones who are working for corporations?

Lawyer convenience may be at odds with client care. The people we represent are often nervous, apprehensive, and insecure. Oftentimes in criminal cases and personal injury cases, people are not sophisticated. A deponent in a case may be uneasy and uncertain. When we are in a room with a witness, we can give him or her a pat on the hand or an encouraging look.

A Zoom hearing or trial makes it less likely that a litigant will understand what’s going on. Lawyers aren’t in the same space as their clients—it must be confusing, at times terrifying, for someone who doesn’t know the drill. There’s no hallway conversation between lawyer and client or between lawyers.

It will be interesting to see if there is an uptick in ineffective assistance of counsel claims and an overall increase in dissatisfaction with lawyers in general.

In depositions, hearings, and meetings, people have a tendency to behave because they are part of a community. Most legal communities are somewhat insular and close knit, and lawyers know or have heard of one another. There is a certain set of behavioral brakes at play when you know that you might see opposing counsel at a restaurant or a grocery store.

While Zoom has certainly made it feasible to handle cases all over the place with relative ease, at times it has contributed to a lack of civility.

I am involved in several out-of-state cases with the same set of plaintiffs’ attorneys. All depositions and hearings are done by Zoom. To say the behavior of opposing counsel is savage would be an understatement: ad hominem attacks on me, my colleagues, and our witnesses every few minutes—seriously, that often. I have often wondered if the same sort of insulting, unprofessional behavior would occur if we were sitting in a conference room together.

Technical Limitations

Let’s talk about that conference room or bedroom or kitchen where Zoom is set up. Over the past few years, I have enjoyed seeing the art people have on their walls, their family photos, the titles of the books in their bookshelves, and the color of the couch. But if I am musing about interior décor, is the setting really professional? I have seen unmade beds, messy kitchens, and bathroom doors open. If you go to court in person, you don’t have to make the bed before you leave the house—no one but you will know.

What is strange and sometimes funny is when people have a fake backdrop, rather than their messy house, as the background. For reasons I don’t fully understand, there is hair-border fluctuation, which is distracting. I wonder why that happens?

I freely admit that I am a Luddite. Setting up a Zoom call is within my limited technological abilities, but that’s about it. However, even the most cyber-savvy person runs into tech glitches. Bad internet connections, poor equipment, and gremlins—all things that can cause a long pause in whatever is being Zoomed. I have been in many hearings over the past years where lawyers sit around and wait while another lawyer deals with technology problems.

Many of you saw the “I am not a cat” video—a Texas lawyer in a hearing had a cat overlay on his face. Every time he spoke with his distinct drawl, it looked like a cute kitty was speaking. It was hilarious unless you were the Texas lawyer, in which case it was horrifying.

At one of my first Zoom hearings, shortly after the pandemic began, I couldn’t get the sound to work. It was an out-of-state judge, and she held up a sign with the dial-in number. I was mortified, and it threw me off my game. I am fortunate to work with a big firm that has remarkably great computer technology people and people who do nothing but help lawyers deal with technology. Solo or small-firm practitioners with technical difficulties may be at a serious disadvantage. It’s rough for them and time-consuming and expensive for whoever is sitting around waiting for the problem to be solved.

Lawyers love to meet. Zoom can be an efficient way for people to get together and have a meet and a chat. Certainly for run-of-the-mill meetings, Zoom is OK—commuter time is decreased and all that. But it has been my experience that laziness abounds when meetings are held by Zoom.

I confess that when I have a quick meeting, I will often attend by audio only so I can forgo makeup. How lazy is that? I’m not alone—there are plenty of others who are audio only. I suspect many of them are clad in T-shirts and have icky hair. This is a far cry from the days when I would carefully select what to wear and try to look professional for meetings. Frankly, this is one of the reasons I go to the office—to avoid personal slippage—but I digress.

Zoom is inherently less collaborative, and I find that often people don’t bring their A game to Zoom meetings. Sometimes there is no game at all. In organizations and groups that I belong to, attendance and creativity have suffered because of Zoom—a torpor has set in. People might come for a bit, then “Leave Meeting,” virtually unnoticed. Equally common is shutting off the video and leaving the meeting while appearing to be there. I am quite confident that when people are off video, it’s because they have wandered off to do other things—like fold the laundry, make dinner, or do a few push-ups. It’s all bad.

Benefits of Remote Meetings

Despite my dismay about the prevalence of Zoom, it does serve certain functions. Calendar calls and brief hearings can be done by Zoom, although they’re so much better in person. Young lawyers for sure should make the trek to the courthouse. It’s educational and exciting.

It’s nicer to have a Zoom call when you can see someone, not just speak to the person on the phone. I like visiting with out-of-state clients by Zoom. It’s also good for short meetings when people are scattered hither and yon.

During COVID, Scott Menger, a young lawyer I practice with, told me that he has good friends he has made via Zoom. I was dubious and told him so. As I wrote this, I thought of the many conversations I have had with him, how closely we work together, and how much I respect him. It dawned on me that although we often speak several times a day and spend hours and hours in Zoom depositions and hearings, we have never met in person. Despite never being in the same room together, I consider him a friend. There you go. Even I made a friend on Zoom. I do look forward to the day when I meet him in person, though. There is no substitute.

It’s good to have Zoom for introductions and some interviews. I am, however, confounded that anyone would take a job or offer a job after only a Zoom interview. It’s perfunctory and cold. I’m dating myself, but I remember when people took candidates to dinner, showed them where their office would be, brought them to a social event. How can anyone have a commitment to a person or firm that they know only on screen?

A mid-level attorney told me he was leaving the firm he was at to go to another firm. He had interviewed with a handful of people via Zoom. I asked him if he was out of his mind. How on earth could he accept a job at a place he had never seen and commit to people he hadn’t met? It seemed nuts. Ultimately, he stayed put—the devil you know and all that.

Zoom is a tool and one with a certain utility. But don’t default to Zoom—it should be the last, not the first, choice for practicing law and living. Don’t miss out on three-dimensional life.