Covid-19 Lawyering Demands New Professional Skillset

Posted: July 15, 2020

To their dismay, lawyers working through the early months of the coronavirus pandemic discovered a pressing need for a skill few possessed: the ability to effectively advocate in cyberspace. The world of webcam and screen was, alas, as alien as an outpost on the moon.

Virtual advocacy isn’t taught in law school. Not yet anyhow. And while the coronavirus pandemic will eventually pass and courtrooms will eventually resume in-person trials and hearings, there’s no doubt that online advocacy skills will be required of every litigator going forward.

Online Is Different … But Also the Same

Effective in-person communication skills don’t translate neatly to the online environment.

For example, making eye contact with the audience is a critical component of effective communications in the physical world. The desire to make eye contact online often leads the speaker to look at images of the audience on the computer screen instead of looking at their computer camera. Unfortunately, looking away from the camera can make the speaker look furtive and unconvincing.

Looking down, or away, from the camera when referring to documents or notes can also have the same disconcerting effect with an online audience.

Many speakers report difficulty “connecting” with an online audience. The lack of feedback makes it difficult to discern which arguments are hitting home with an online audience and which points might require elaboration. It’s also difficult to maintain positive energy when speaking into the digital void, without the stimulus of a live response to one’s words.

In a physical courtroom setting, litigants take for granted that the room will be well-lit and acoustically sound. If the judge or other parties have difficulty seeing or hearing any part of the proceeding, corrective feedback is immediate. Not so online, where each participant is in charge of his or her own lighting and audio setup, and corrective measures are rarely as simple as speaking just a little bit louder.

The online advocates’ need to pay attention to the performance of their technology inevitably adds a layer of complication that can detract from the main task of effectively communicating the client’s legal position.

On the other hand, the online medium is not so different that traditional courtroom decorum can be dispensed with. Many judges will expect the same level of formality in online proceedings as in a physical courtroom. At a minimum, this means formal attire for advocates and no eating or other conduct that would be inappropriate in the courtroom. Some judges may expect advocates and parties to stand up at points during the proceeding.

And it (almost) goes without saying that advocates should prepare for online proceedings with the same rigor as courtroom proceedings, perhaps even more so, given the additional communications challenges presented by online proceedings.

Quick Tips for Online Litigators

Here are a few tips to make online hearings smoother and more effective:

  • Look directly at the camera at all times, if possible. Consider placing your notes on screen so you don’t have to look down at paper notes.
  • Maintain positive energy during your presentation and assume that you have everyone’s attention during your remarks.
  • Consider delegating technology issues to a litigation assistant so you can focus on your presentation.
  • Become as familiar as possible with the court’s technology setup. If the online technology fails, is there a telephone number you can call to participate via audio online?
  • Pay close attention to the written part of your case. If the online hearing doesn’t go as well as you’d like, at least you have a strong written submission.
  • Conduct yourself with the same level of formality as you would in a physical courtroom.
  • Ensure that your background is not cluttered or distracting and that you are in a well-lit environment.

Vendors to the Rescue

Lawyers are communicators first and foremost, and the legal profession often has been asked to adapt to the latest communications medium. Just as television begat consultants supplying “television training for lawyers” and social media begat consultative services on “social media for lawyers,” it seems inevitable that the profession’s need to serve clients well in virtual proceedings will create demand for virtual advocacy training.

So far, most of the professional guidance has focused on technology issues related to virtual law practice, with little information on virtual advocacy skills and effective online communication. But that is changing.

One publisher, the National Institute for Trial Advocacy (NITA), recently rolled out a series of new products on the topic of online advocacy. NITA’s offerings include training modules on remote depositions and remote courtroom proceedings. NITA’s 10 Tips for Presenting Yourself Online (PDF) summarizes leading considerations for managing the technology aspects of online hearings.

The American Bar Association’s Coronavirus (COVID-19) Task Force has collected dozens of resources to help lawyers succeed online, some of them touching on advocacy topics.

State bars are beginning to become active as well. The New Hampshire Bar Association’s Working Through COVID-19 resource contains a long list of pointers to guidance on virtual advocacy. The North Carolina Bar Association recently published Zoom Tips for Hosts and Participants to help lawyers work through advocacy challenges on the Zoom platform.

In Florida, the Florida Bar’s LEGALFuel practice resource center will be offering the free class Conducting Depositions Online — What You Need to Know on July 16.

Until lawyer-specific training becomes more widely available, lawyers may consider reviewing resources on effective online teaching techniques. Harvard Law School, for example, has published extensive guidance on using remote technology tools to teach and interact with students. The American Association of Law Schools recently published the free on-demand presentation Top 5 Tips for Teaching Law Online, which contains suggestions for how to be engaging and maintain listener interest during online communications.

Ultimately, it may be attorneys themselves who will be their own best teachers, as thousands of online hearings — each one yielding a “win,” a “loss” or some other immediate feedback — create a new generation of attorneys who are as comfortable in front of a webcam as they are in any other setting.


Esquire Deposition Solutions