Virtual trials are different from in-person trials. They demand technology that is unfamiliar to many and a new approach to trial advocacy, where the litigator’s voice and physical presence have been replaced by a video transmission that is, in many cases, substantially outside of the litigator’s control.
Some attorneys are mastering this new litigation environment, becoming effective virtual advocates through a combination of practice, planning, and the application of lessons learned from the bracing experience of practicing law during the COVID-19 pandemic.
Below are the top technology tips shared by individuals who were making remote courtroom litigation happen in 2020, taken from a recent conference on virtual trials held by the National Institute for Trial Advocacy.
Work Out Technology Support Roles in Advance
In a virtual proceeding, the attorneys, judges, and courtroom personnel are responsible for their own technology. But what about jurors and witnesses? Is the task of solving their technology and connectivity challenges the responsibility of the court? Or counsel?
Prof. Frederick Lederer, a law professor and William and Mary Law School and directory of the school’s Center for Legal & Court Technology, said issues surrounding technology support for all participants in a remote trial have not yet been worked out.
“Somebody has to support remote users, particularly those such as jurors and witnesses who have little or no computer knowledge,” he noted.
Lederer said that, while attorneys often attempt tech support for their own witnesses that is not a desirable situation in his opinion.
As for jurors, courtroom technologists will usually attempt to assist jurors with technology problems; however, he said, they currently are not trained to serve this role. Moreover, when courtroom technologists are seen assisting one party, but not others, it could create the appearance of impartiality.
The job of court technologist will have to evolve to meet the new demands that remote litigation is placing on the court system. David Bartee, director of the Court Technology Office in Fairfax County, Va., said that court technology personnel are being asked to serve a wide array of courthouse users during virtual proceedings: attorneys, judges, police, prosecutors, public defenders, and in some cases jurors. He said that meeting the needs of the next generation of courthouse users will require additional training for existing staff, particularly in the area of audiovisual technology.
Ted Brooks, managing partner at Litigation-Tech LLC in Los Angeles, said that it is important to test the courtroom’s Internet bandwidth prior to a trial or hearing. A courtroom network that works fine under ordinary use can crumble under the pressure of heavy use during a remote proceeding.
Prior to commencement of a virtual trial, courts should have protocols in place to handle any technological glitches that may occur, Lederer said.
According to Lederer, the single most desirable trait a litigator can bring to a virtual proceeding is competence.
“Counsel and judges critically need one thing other than bandwidth and hardware,” he remarked. “And that’s simple competence.”
Lawyers with technological competence are not only more effective advocates for their clients, but they also can be a helpful resource for the court when technological glitches arise — as they inevitably will — at trial.
Courts, Lederer said, “desperately” want counsel to bring minimum technological competence to the virtual courtroom.
Lederer noted that most jurisdictions have adopted Comment 8 to Rule 1.1 of the Model Rules of Professional Conduct, which states that “a lawyer shall keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Use Dedicated Lights, Camera, and Microphone
An unadorned laptop computer, while capable for most computing tasks, is rarely going to deliver a winning presentation during a virtual hearing.
“If you are going to appear without a studio or a prepared chamber, you need a dedicated camera and microphone,” Lederer said. “You really don’t want to rely on a laptop or notebook computer because the quality tends to be inadequate.”
Noah Wick, national director of litigation consulting at Trial Exhibits, Inc. in Seattle, agreed with Lederer on the importance of having a dedicated camera and microphone.
Wick said that the Logitech C922 and 1080P webcams perform well in Zoom conferences. He recommended that attorneys consider purchasing a bundled webstreaming combination that included a Logitech C922 webcam and a Blue Yeti USB microphone.
“Those are going to make you sound great,” Wick said. “More important than video is that every juror can hear you clearly.”
Lederer advised attorneys to pay attention to lighting in the room where they are presenting. Often, additional lighting will be needed to counteract low-lit environments or environments where the existing lights create an unflattering video image.
The solution is to test the lighting in advance.
“You have to have enough light, and you have to make sure it is not doing very strange and not wondrous things to your face,” Lederer said.
Avoid Virtual Backgrounds
Virtual backgrounds can have adverse consequences if not deployed well. The problem, Wick said, is that few attorneys know how to create an appealing virtual background. Unless the attorney is using a good green screen and knows how to light both the screen and the attorney properly, the virtual background will not look good, Wick said.
Also, jurors don’t like virtual backgrounds.
“Recent post-verdict feedback from jurors and jury research is that, when an attorney uses a virtual background, jurors think of two things,” Wick said. “One, you’re trying to hide something or, two, you’re trying to put on a show.”
Wick recommended that attorneys use a blank wall for a background, one that contrasts well with the attorney’s clothing.
Dedicated Monitors are a Good Idea
Squinting into the small screen of a laptop computer doesn’t lend itself to a compelling presentation. Attorneys should consider using a larger screen, or several larger screens, if possible.
Wick described a recent trial he was involved in, in which the attorney presented with two large monitors — one on the right with PowerPoint’s “slideshow” view and another on the left with a “presenter” view that contained the attorney’s notes. A webcam was placed in the center of the left monitor so that, when the attorney read from her notes, she was looking directly into the camera. The attorney drove the slideshow with a handheld clicker, further eliminating the need to look down at her laptop.
Finally, an assistant was present to bring up exhibits during the presentation.
Wick recalled that, in another case tried this summer, an attorney had used a separate monitor to display pictures of jurors — which the attorney used to help communicate with a jury consultant on his team.
Other Quick Tips
Wired Is Better. A direct, wired connection to the network router will almost always deliver a faster Internet speed than a Wi-Fi connection.
Keep Backup Technology Close at Hand. Remote litigators should have a backup computer ready in case their main device fails. And they should back up these two computers with a capable smartphone.
Consider How Jurors Will View Evidence. Litigators should pay attention to how documents and exhibits will be viewed by jurors in a virtual trial. Jurors may not own the latest and greatest technology, or they may be viewing the trial on a small screen under less-than-ideal conditions. Trial exhibits that look poor in these settings will have little impact on jurors.
Use a Checklist. There are a lot of things to set up and keep track of during a virtual proceeding. A checklist of bases that must be covered is helpful, particularly today when technology is evolving rapidly and everyone involved is to some extent a neophyte.
Dress Appropriately. A remote courtroom proceeding is still a courtroom proceeding, so ethical rules on courtroom decorum still apply and appearances matter.
Go Ahead and Stand Up. Some attorneys prefer to stand up while advocating their case in a virtual proceeding, as is traditional in courtroom advocacy. This can be easily accomplished with a standing desk. Wick said he has employed VariDesk products, which can be obtained for as little as $200 used.
Bring a Tech Support Person. Virtual proceedings have a lot of moving — and unfamiliar — parts. Having a tech support person to share the burden of running the presentation will keep the attorney’s focus on delivering a compelling presentation instead of on technology and administrative matters.
Excelling in the New Virtual Courtroom
The all-remote “courtroom of the future” is not here yet, and it may never arrive for in-person proceedings that have constitutional significance such as criminal jury trials. But for the rest of the justice system, the writing is on the wall (“the pixels are on the screen”?). Remote advocacy is fast becoming commonplace.
Courts will eventually work out who has responsibility for ensuring that jurors and witnesses are able to effectively participate from remote locations. And technology-related errors will soon take their place alongside other procedural errors, each with their own standard and burden of proof. How, for example, will courts resolve a juror’s post-trial contention that he was not able to view all of the exhibits offered at trial? Does the Sixth Amendment require the government to furnish indigent criminal defendants with the same quality of technology possessed by the prosecutor’s office? When must technology-related errors be raised, and under what circumstances will they be deemed to have been waived?
How much patience will courts have for attorneys who, for whatever reason, are not able to effectively present their cases in a virtual environment? What, for example, is a court to do when an attorney clearly appears to be speaking on the video but no sound is heard? Is the attorney unable to manage his “mute” button, or is he intentionally having a private conversation with co-counsel?
How patient will clients be when they compare — as they inevitably will — their attorney’s online presentation skills with those of familiar television and online presenters?
This much is known: The legal profession has moved on from “making it work” to “making it work well.” Creative lawyering, practice, technological competence, and attention to small details have raised the bar for everyone involved.