Trial Preparation
Outside of witness preparation, trial preparation changed very little as part of remote trial proceedings. There was still the need to prepare motions in limine and the pretrial order. If anything, however, those tasks took on greater importance during the remote trial. After all, a highly negotiated pretrial stipulation typically leads to a smoother trial—something that is particularly important in a remote trial, where there is less room for error, given the high reliance on technology. The process of deposition designations also takes on added importance because the video clips need to be prepared well in advance to ensure they stream properly over the Zoom trial platform. As junior lawyers are typically the ones preparing the deposition designations, it is important that such designations are prepared in advance and reviewed in advance.
Graphics preparation is also key. Trials typically involve demonstratives, but the remote trial does not afford the ability to create such demonstratives on the fly in the courtroom. Gone are the days of the whiteboard chronology. Nor is there the opportunity for the posterboard with key facts or evidence. All of this information is now typically prepared in advance as part of a PowerPoint presentation. Junior lawyers, who are typically most familiar with such software, are often in the best position to prepare such graphics. And, because the remote trial environment allows senior team members to “pop into” various Zoom sessions on a moment’s notice, it is often best to have the junior members of the trial team work with witnesses (such as experts) on preparing the necessary trial demonstratives.
Preparation of Witnesses
Given the ubiquitous nature of remote videoconferencing platforms, it is likely that your witness or witnesses have some level of familiarity with the technology required to testify remotely. That said, it is very important to do practice runs with any applicable technology. Make sure that the witness has appropriate bandwidth and adequate sound quality. Double-check that the witness understands all functions of the technology that may be used while providing remote testimony. In particular, attempt to replicate how evidence will be presented at trial and will be shown to the witness. Confirm the witness’s familiarity with any sort of features that you may use and want to incorporate (screen sharing, digital pointers, any sort of drawing or highlighting tools). If possible, the witness should have a setup that includes two screens: one designated for exhibits and one for displaying the questioning attorney.
Set your witness up for success, and be clear about expectations for testifying. It is important to control the setting from which the witness will testify. The witness should find a quiet, plain or formal location from which to testify. Testifying from a home environment may cause a witness to treat the experience too informally. Witnesses should be reminded that this is a formal process. Set expectations on proper dress. Be cognizant of all aspects of a witness’s presentation, including possible rocking or fidgeting in a desk chair. Test out and optimize lighting and camera angles. Eye contact is critical to our perception of credibility, and most laptops will need to be raised so that the camera is at eye level. Witnesses should also be aware of any features associated with their personal technological setup and be able to turn off any unnecessary notifications.
If all preparation is also occurring by videoconference, it is helpful to schedule shorter—but more frequent—meetings with a witness. Videoconferencing can be draining, and it is often difficult to host longer sessions and be able to hold everyone’s attention on a videoconference, as compared with an in-person “war room” setting. And without the need for travel, take advantage of the opportunity for earlier preparation. Remote practice sessions can be a great opportunity to collaborate and get multiple colleagues involved in a witness’s preparation.
Finally, the senior attorneys on the team would do well to spend some time with the junior team members who will be presenting witnesses at trial as they run through their examinations. It is often important to see the examination presented in advance and offer tips and tricks to the junior lawyers on presentation style. It also important to consider evidentiary objections that might be made to the examination in advance so that the junior lawyer can be prepared for them. This is particularly important in remote trials, where the examining attorney is often “on an island” with limited ability to communicate with colleagues in real time in a manner that would be possible if everyone were in a courtroom together.
The Remote Trial
The remote trial is where the magic is made, but it does take lots of preparation to make it run smoothly. If the members of the trial team will not be in the same location, coordination and planning during the remote trial are critical. It helps if every team member has a full copy of any trial exhibits, whether electronic or otherwise. If possible, schedule a full trial team meeting every morning before court begins and once the trial session wraps up for the day. The partners on the team should be very clear about delegation and make sure that any team members who will not be appearing at trial on a given day are able to complete any necessary tasks. The junior lawyers on the team who will be presenting witnesses should make sure to practice the testimony with the witness well in advance.
Having a talented courtroom technology specialist or “hot seat” operator is even more important in a remote trial. But even with a superb hot seat operator, the full trial team should be well versed on the procedure for the presentation of electronic trial exhibits. The trial team should be in constant communication with any technician. This is particularly important for cross-examinations, during which a technician is more likely to need to pull up some sort of document or prior testimony for impeachment on the fly (and attorneys may not be able to pass physical notes or whisper to the technician in anticipation of the need to display a particular item). If presenting attorneys will be implementing their own screen share, they should be sure to do multiple practice runs and be very familiar with any and all features of the screen share. In particular, each presenting attorney should ensure that he or she is not sharing portions of a screen that should not be displayed, such as inadvertently showing trial notes or broadcasting email messages from team members to the virtual courtroom.
Conclusion
As a young lawyer, be sure to take advantage of any additional opportunities that may come your way through a remote trial. Videoconferencing tends to allow for a greater number of attorneys to attend trial and for greater flexibility in trial preparation. Use that to your advantage, and look for opportunities.
