In the past month, court systems nationwide - notoriously technology resistant before the crisis - have rolled out new practices to allow for the justice system to continue on a limited basis. New York courts, which had been closed for everything except emergencies since March, have begun to open up virtually for non-essential matters. It’s a testament to the resilience of the lawyers, judges, and court staff how quickly they have adapted new technology in order to continue serving the public.
If you have not yet appeared in a virtual hearing in your practice, you may be wondering - what’s the protocol? How will I interact with my client, and opposing counsel? For specific details, you should of course check in with your local court’s website - just as you would check the local rules if you were appearing in a new jurisdiction. But there are some basic, universal tips you can take with you into your first virtual appearance to make you more confident, better prepared, and ready to take on the challenge. Check them out below:
1. Decide whether you really need to do the hearing.
This seems too basic, but it’s true - many hearings are going to be able to be postponed, so it’s a judgment call whether you want to proceed right away or wait for a return to normalcy. Of course if your client is in jail or a detention center, you don’t have a choice. But if it’s a less critical issue, you should weigh the pros and cons. Has the case been delayed for some time already? You might want to move ahead with the schedule. Does the current situation impact your argument at all? Keep it on the calendar. On the other hand, if it’s a sensitive issue, like a sentencing hearing, and you want to make sure you are on the top of your game, you should ask for an extension.
2. Test your technology.
It doesn’t matter how many times you’ve used Zoom at work, you want to do a test the day before your hearing to make sure all of your tech is charged and connected, your webcam is working, your background is professional, and your computer isn’t going to decide to download a critical update in the middle of your argument. In addition, if you are using multiple devices, you want to set everything up in a way that feels comfortable and convenient for you.
3. Gather your materials.
It’s just like trial prep - except it’s probably on a computer, a tablet, or your phone. If you are using your main computer for the video conferencing system itself, you do not want to be switching between applications to look for exhibits or check your notes. If you have access to a printer, and you don’t need hundreds of pages, then hard copies are a good choice. But chances are, you’re going to want to have a backup device or devices with your electronic materials well organized. Make sure you know what folders your documents are in, create an easy to remember naming convention, and have a separate file listing everything you may want to refer to at what points in the hearing.
4. Make a plan with your client.
In most hearings, your client would be in the room with you, able to provide information and help determine your strategy in the hearing. In a virtual hearing, your client can’t speak to you privately, so you want to make sure you know ahead of time how you are going to communicate. Text messages or emails are probably your best bet, so check in with your client ahead of time so they can express a preference and know what to expect. And remember, if there is a chat function in the video conferencing system, those communications are not going to be private or privileged. The rules of ethics don’t go away in a crisis.
5. Focus on the judge.
When you are making an argument in court, you are probably laser focused on the judge - looking for cues to direct you and anticipating whether you are about to be interrupted. In a virtual hearing, it can be a lot harder to pick up on body language and other cues. In addition, a busy online meeting (the participants are probably going to include you, your client, opposing counsel and their client, the judge, and a court clerk) can be disorienting. So train yourself to focus on the judge during your hearing as much as possible to try to capture some of the formality of the courtroom. Do a test run with a colleague - remember, in virtual courtrooms, just as in person, practice is everything.
For more tips, check out this short video by Lee Vartan, Partner at Chiesa Shahinian & Giantomasi PC’s White Collar Criminal Defense and Government Investigations, Litigation and Privacy and Data Security groups.