The American Bar Association’s Litigation Section recently gathered two experienced virtual advocates and one judge to discuss their experiences handling remote depositions and virtual trials during the COVID-19 pandemic. The lessons they dispensed were the product of hard-earned experiences in early 2020 — the pioneering days of virtual proceedings. Some were earned through practice and preparation, some were pleasant surprises, and some were mistakes they won’t make twice.
Here are 16 actionable takeaways from their remarks.
1. Zoom fatigue is real.
Virtual proceedings are challenging for everyone involved. It’s easy for witnesses and fact-finders to lose focus after several hours of watching a computer screen.
“You are asking a lot when you ask your fact-finder to sit and pay attention staring at a screen for eight hours a day,” Tynan Buthod, partner at Baker Botts LLP Houston, said. “As a trial lawyer trying the case, it is incumbent on you to make sure that you are delivering the case in the clearest, most straightforward way — that includes the use of documents, that includes efficient time with witnesses,” Buthod added. “That may include taking a lot more breaks than you would otherwise. You need to make sure that you can get in a full day’s worth of work with an audience that’s able to pay attention for a full day.”
2. Plan ahead for exhibits.
“Think about how you’re going to handle exhibits in advance,” Kathleen B. Campbell, a partner at Manko Gold Katcher Fox LLP in Bala Cynwyd, Pa. “If you’ve had trials in the courtroom, you know how long it takes to prep for exhibits and how you’re going to handle them. Double or triple the length of time it’s going to take to deal with exhibits in a virtual hearing.”
3. Project a compelling image.
Litigators are not well-served by cameras set up to capture several people at the same time, all sitting at a conference table, according to Hon. Robert M. Spector, U.S. magistrate judge for the U.S. District Court for the District of Connecticut.
“That’s not a great place to be if the camera is 20 feet away,” Judge Spector said. “When you’re far from the camera, you may think you’re doing a great thing by being in that conference room with your three other partners or with your client. I think you’re probably better off being in separate rooms with your devices so that your face picks up that little box, and I can see your face and I can hear you clearly.”
4. Help the court reporter record the proceedings.
It can be difficult for the court reporter to accurately track who is saying what in a virtual environment where the court, the attorneys, and the witness are all in separate screen windows. Also, it’s not always clear whose voice is connected to any of these images on the screen. Getting a good record and preserving errors in a virtual environment is a critical task that should not be overlooked.
“It’s hard to get a good record,” Buthod said. “And if it’s not good, that’s your problem. And it’s your problem if you haven’t effectively allowed the court reporter to track who’s talking, when the witness is up, not interrupting the witness — all those kinds of things.”
5. Establish ground rules and expectations.
Buthod said that he begins remote depositions with a series of questions to the witness that are designed to enforce the integrity of the proceeding. He asks the same questions after every break as well:
- Who is in the room with you?
- What documents are in front of you?
- Can we agree that you will tell me if someone joins you in the room?
- Is there anything that is distracting you?
“We don’t have a sheriff in there to police things, but at least I can establish a record of whether I’m in fact, getting the witness’s testimony or somebody else’s,” he said.
6. Don’t hide behind PowerPoint.
A PowerPoint slide deck, if given a prominent role, can push the attorney into a small box off to the side of the screen — not the best vantage point from which to deliver an argument. Campbell said that this set-up prevents the attorney from making good contact with the fact-finder.
7. What was forgivable in 2020 isn’t anymore.
Tales of virtual lawyering during the early days of the COVID-19 pandemic included accounts of attorneys seen on-screen in their pajamas or other less-than-professional attire. Many were clearly — and unapologetically, challenged by videoconferencing technologies. That behavior is no longer appreciated.
“Fourteen months later, it’s not funny anymore,” Judge Spector said. “So I think that you have to know the platform and be ready for it.”
8. Be disciplined when asking questions.
Long-winded or ambiguous questions are difficult to process under the best of circumstances. When in a virtual environment, the odds that a question is misunderstood by the witness, or that the witness’s answer is misunderstood by the attorney, go up significantly.
“Doing a trial by Zoom was a lot like taking a deposition when you have a translator,” Buthod said. “It forces you to shorten your questions. It forces you to make sure that your question is a clear yes or no. That is, ‘What is it that I’m after?’”
9. Your conference room is the courtroom.
Buthod advised attorneys to behave in whatever room is being used to participate in a virtual proceeding the same way they would behave in a courtroom. No multitasking, no checking messages, no eating, and no conversing informally with associates.
“For me,” he said, “I found it very helpful to treat that room with the same formality and same respect as I would a federal courtroom.”
10. Pin the judge, minimize the witnesses
Campbell said it has been helpful to her to give the judge a prominent position on her computer screen, while minimizing the views of witnesses and others.
“I was looking at the judge as I was questioning my witness,” she said. “And I could pick up on his overall demeanor or when he was taking notes, when he seemed bored, and when he seemed particularly interested. And it really helped me kind of cater my line of questioning accordingly.”
When cross-examining an opposing witness, give the witness prominent screen real estate.
“I recommend pinning the witness that you’re cross-examining,” she said. “Look into the camera directly. Typically the witness that you’re questioning is going to be really up close. If you can establish that it’s the two of you in the room,that can be really effective.”
11. Is your witness ready for a close-up?
The technology used in virtual depositions and trials allows the fact-finder to get a really close look at witnesses. Facial expressions that might have been missed in a courtroom are captured in detail by the camera.
“If we’re in a courtroom, I can’t see a witness the way I can see them on Zoom,” Judge Spector said. “On Zoom, I can really see facial expressions. I can see somebody roll their eyes. I can hear them sigh. Everything you do can be seen close-up and personal and you can’t get away with things you may have been able to get away with in a courtroom.”
12. Place witnesses in distraction-free environments.
If a witness is testifying from home or some other environment not under the attorney’s control, then that witness must be told to testify from a location free from distractions. They must appear professional and undistracted on screen — just as they would in front of a court or in front of a jury.
“I don’t ever need to see the place where somebody else sleeps, that’s just too private, too personal,” Buthod remarked. “I find that a rotating fan on somebody’s ceiling is distracting or other things in the background are distracting. Or you find yourself saying, ‘Man, I wonder if those are his kids? How old is that picture?’ All those things can only serve to keep the fact-finder distracted.”
13. Virtual is here to stay.
Virtual proceedings aren’t favored by many litigators. They prefer in-person proceedings where they can connect closely with witnesses and fact-finders. That connection can be difficult to achieve online without practice in front of a camera. In-person is comfortable, but virtual is here to stay.
“We’ve all become educated that there is a lot that we used to do in person that we just don’t have to do in person,” Buthod said. “It’s harder to take a deposition. It’s hard to have a lot of contested hearings. But there are so many occasions where we can do those things virtually and save our clients’ time and our money. I think we’re only going to get better than that in a post-pandemic world.”
14. Courts will modify the rules for a good reason.
Don’t assume that published court procedures are not subject to modification. Would you like your witness to testify without a mask? Would you like to address the court without a mask? If COVID-19 vaccination numbers are high, or if you have opposing counsel’s agreement, the court may very well grant your request.
“I would not shy away from asking the court to modify things as we move forward,” Judge Spector said. “We’re trying to be responsive to the current situation, but that situation is ever-changing.”
Judge Spector also advised attorneys to ask judges which format they preferred to receive documents and exhibits — paper or electronic. Some judges have gone entirely paperless. For those judges, paper filings are a burden.
15. Wear one hat: lawyer.
Attorneys should focus on delivering high-quality advocacy for their clients, Buthod advised. Leave technical matters to an assistant, if possible.
“Your job is to examine and cross-examine witnesses,” he said. “Hire a video technician, hire the right person to handle your documents, and rely on him or her so that you’re not stammering through your virtual trial, showing your ineptitude at something that you don’t need to do. You need to have somebody else that’s able to do that for you.”
16. Learn and prepare diligently.
“In order to zealously represent your client today, you need to learn the technology,” Campbell said. “Lawyers tend to not be the best at technology, but we don’t have a choice. In the same way you prep for regular trial in a courtroom, you’ve got to prepare, prepare, prepare. If so, you’ll do a great job.”
We’ve been writing quite a bit lately about remote depositions, virtual trials, and online advocacy skills that litigators will need to thrive in the future.