Why Remote Hearings Should Look Familiar to Deposition Veterans

Why Remote Hearings Should Look Familiar to Deposition Veterans

Earlier this month, the National Center for State Courts released the latest iteration of its Remote Proceedings Toolkit, a document principally intended to help courts transition to wider use of remote proceedings. For litigators, however, the NCSC’s work offers an opportunity to continue developing the skills needed to represent clients effectively in what will certainly become an enduring part of litigation practice in the not-too-distant future.

The toolkit also contains good news for litigators who’ve already polished, during remote depositions, their online advocacy skills and technological fluency in handling digital evidence. Those professional competencies will be directly transferable to the nation’s next-generation courtrooms.

As courts continue refining remote and hybrid procedures, litigators who already understand virtual testimony, digital exhibits and technology preparation will be well positioned to advocate effectively in any courtroom.

Evidence-Sharing Is a Leading Concern

The NCSC toolkit encourages state courts to weigh carefully which types of proceeding are suited for remote formats and which should ideally be conducted in-person. The authors note that, generally speaking, courts are more likely to make some shorter, routine proceedings presumptively remote. Today many scheduling conferences, status hearings, and even motion hearings that can be decided on briefing and argument, are presumptively remote.

With respect to hearings that will turn on evidentiary issues, the toolkit invites courts to weigh carefully how evidence will be shared with all parties prior to the hearing. And if evidence cannot, for some reason, be shared prior to the hearing — then how will be shared during the hearing?

In this new environment, evidence-handling and witness testimony will be key considerations for litigators. Litigators should assess whether their proof can be fairly presented remotely. Documents, photographs, and sound recordings can all be digitized and effectively presented during remote hearings. However, physical evidence is more difficult to accommodate, so hearings where physical evidence is expected to be critical may not be amenable to virtual proceedings.

For hearings that will be conducted remotely, litigators will need to confirm that the courtroom has adequate technology for evidence-sharing and prepare to distribute proposed evidence to all parties before the hearing begins.

If any of this advice sounds familiar, that’s because it’s the same advice commonly shared for success in remote depositions:

• Become familiar with the rules applicable to the proceeding. This means knowing the court rules applicable to remote hearings and being prepared to argue for the format that will advance the client’s best interests.
• Understand the technology that will be used by the court and make sure both litigator and client have the necessary technology to participate effectively.
• Possess the skill to efficiently share and introduce digital evidence. This might include the ability to pre-mark and organize documents digitally. Fluency with remote deposition technologies that allow litigators to upload and mark exhibits in real time, such as Esquire Deposition Solutions’ eLitigate®ZE, is a great place to start.
• Confirm that the witness can see the digital document in question. Experienced remote deposition litigators pause to verify screen quality, page visibility, and zoom level before questioning begins.
• Establish a clear record of what’s on the screen by verbally identifying and describing each exhibit as it’s introduced (“I am now sharing what has been marked as Exhibit 12, a three-page email dated …”).
• If necessary, work with the court reporter remotely to ensure that the reporter can capture exhibit numbers and log them properly.
• Know how to assert and respond to objections about exhibit foundation or authentication when normal visual and interpersonal cues (passing a physical document, watching body language while flipping pages) are unavailable.
• Consider the fact that all participants are not present in the same room together may raise concerns about coaching or other improper influences on the witness.
• Take advantage of court-provided training and opportunities to conduct test runs in advance of the hearing.

Litigators who have conducted remote depositions have already developed practical fluency with exactly the challenges that emerging state court evidence-sharing portals are designed to solve. They can mark exhibits digitally and screen-share documents while maintaining a clean record. They can manage simultaneous virtual “handling” of evidence with a witness or opposing counsel, and they already built in technology check routines before substantive questioning begins.

State Court Work on Digital Evidence Platforms

One portion of the NCSC toolkit examines how some states are solving the logistical problem of evidence sharing before and during remote hearings. Several states are highlighted as models. These efforts are worth studying regardless of which jurisdiction a litigator might practice in.

Arizona court officials have built a digital evidence portal that allows parties to  upload evidence and exhibits ahead of scheduled proceedings. This creates a shared repository that both opposing parties and the court can access, eliminating the scramble to physically hand out or screen-share documents mid-hearing and giving all sides advance notice of what will be introduced.

In Minnesota, court administrators have also taken a structured approach, creating both an Exhibit Process Overview — a document explaining how evidence will be shared and presented in remote proceedings — and a Digital Exhibit Management System, through which parties formally submit exhibits to the court and to other parties in the case.

In Georgia, Rule 9.2 of the Georgia Superior Court Rules permits witnesses to testify virtually in any proceeding, whether that proceeding is itself virtual or in-person, and gives trial courts discretion to allow video testimony in civil cases. The Georgia rule also requires: “All participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceeding, either by video, facsimile, or other method.”

California has no single statewide portal; instead, individual county courts operate their own digital evidence platforms. Notable examples are the Los Angeles County Digital Evidence System, the Orange County Electronic Evidence Portal, and the Alameda County Digital Evidence Portal.

New York, a jurisdiction that has been working through digital evidence issues for a long time, has a statewide system called the Virtual Evidence Courtroom.

The 2021 report Improving and Streamlining the Presentation of Evidence: Court Hearings (PDF) provided an overview of New York courts’ authority to conduct remote court hearings and a useful summary of technological challenges involved in fairly dispensing virtual justice.

Texas has a digital evidence sharing platform that local courts may opt in to use. To date, roughly two dozen Texas trial courts have done so.

Together, these examples show a pattern: Rather than treating evidence-sharing as an improvised, hearing-by-hearing workaround, states are building standing infrastructure — portals, submission systems, and rules — that make evidence exchange a routine, predictable part of remote practice rather than a source of last-minute friction or due process risk.

Remote Deposition Veterans Are Already Prepared

Attorneys who are already comfortable with virtual exhibit management and remote witness handling from deposition practice arrive at remote hearings with a head start other participants may lack. The muscle memory  developed during remote depositions — knowing how to preempt connectivity failures, how to keep exhibits organized and time-stamped in a virtual environment, and how to compensate for the loss of in-person cues when assessing credibility — maps directly onto what courts now need judicial officers, staff, and litigators to do in remote evidentiary hearings.

As courts continue refining remote and hybrid procedures, litigators who already understand virtual testimony, digital exhibits and technology preparation will be well positioned to advocate effectively in any courtroom.