Written by Jim Gill
As early as May, the ABA Journal was raising the idea of Virtual Trials becoming a part of the “New Normal,” an oft-used phrase to indicate life moving forward in the aftermath of the global COVID-19 pandemic. Now, three months later, virtual hearings and trials are becoming a regular occurrence, and as they do, challenges arise with them.
This week’s eDiscovery Blues cartoon tries to capture a few of those challenges with our usual combination of levity and insight; in particular, the struggle of an attorney being able to gauge the reactions of various parties while presenting an exhibit on screen. Also, it was hard to pass up the chance to show someone taking advantage of professional attire for the camera, while still rocking shorts and fuzzy slippers off screen.
A Few Basics to Consider for Trial Presentation in the Virtual Courtroom
As most of us become accustomed to video conferencing and remote work, a few things start to become apparent as being necessary.
When you move from a real life setting to video, your brain might be expecting the outcome of a multi-camera television production, but the reality ends up something like today’s cartoon. But with Zoom calls, you actually do have multiple camera views to work with. This is where having, at minimum, a second monitor in order to optimize presenting as well as organizing participant and speaker views is crucial.
Backgrounds, Dress Codes, Lighting & Audio:
In the recent congressional hearings with the leaders of Google, Facebook, Amazon, and Apple, one thing that came out of that was an analysis of the speakers’ video presences (There was a great write up about it in the NY Times).
Keeping that in mind, here are some things to consider:
- Attendees should keep their background simple and neat (backgrounds such as a beach landscape or a galaxy are inappropriate for the courtroom).
- As dress codes are still required, attire needs to be professional. At least follow the “Zoom mullet” approach – business on the top, party on the bottom.
- Also consider staying away from striped patterns in clothing. In a recent hearing, one participant was constantly closing his eyes, because another participant’s striped blouse was making him slightly nauseous as the pattern was visually vibrating.
- Good lighting is also very important. Avoid being backlit. Also avoid dark spaces and shadows, which can add an unintentional, somber mood. Ring lights are more popular than ever and for good reason.
- If you have to choose between good audio or good video, choose good audio. Investing in a quality mic can have a huge impact.
Opportunities & Challenges for Virtual Trials and Hearings
To get more insight into the current situation, I reached out to Alicia Aquino, who is a Trial Presentation Specialist and Litigation Consultant, for her take.
“Online trials are such a controversial topic; however, we see it CAN be done. Whether you’re in-person or online, organization and preparation are the keys to a seamless trial.”
She goes on to add a few of the challenges she’s currently seeing.
“We are finding that access to technology may be an issue for some states and counties. In an ideal situation, jurors would use dual monitors during trial. As with an in-person trial, the cost of trial equipment is shared between parties, ensuring all jurors have an adequate set up may be the burden of the parties in the future.
“Another challenge with online trials is the internet speed varies from home to home, and jurors and parties are being dropped, causing delay. A possible solution may be asking jurors to participate at a public setting (i.e. library or government building) which can accommodate for safe social distancing.
“There is a high level of importance for a technical or ‘IT bailiff’ during an online hearing or trial to assist with the coordination of jurors, breakout rooms, and any other tech issues. This person is trained by the court to handle the back end of the platform and logistics. Some courts face an issue with the budget of having a full-time person assist with technology.
“Court reporters are being tasked with pulling up exhibits in a deposition; however, having an experienced trial tech will help streamline this process. Let the attorney handle the legal arguments while the tech handles the software and evidence.”
3 More Things to Consider for Trial Presentation in the Virtual Courtroom
For further insight on how to better prepare for virtual courtroom presentation, I turned to Janelle Vindiola, Senior Project Manager for our Trial Services Team.
- Practice, Practice, Practice
Take time for incorporating multiple practice sessions within your own legal team, so they can learn what to expect when presenting visual evidence in a remote environment. Practice sessions can help determine internet connectivity between parties (including witnesses) to allow time for upgrading equipment if needed. And, as the court is usually the web host, allow time for a practice session between court and counsel to understand the court’s expectations and requirements, as well as learning the workflows between all parties.
- Organization of Exhibits is Key to a Smooth Presentation
If it is not already part of the process, it is suggested for the legal team to share a daily outline of exhibits to be presented. Because the trial tech does not have the convenience of sitting next to counsel, an outline will help the tech easily follow the counsel’s direction of strategy and on queue to present.
Make sure to have an alternate file sharing application to support distribution, since Zoom has a file size limitation of 512MB. Also, courts are known to disable the chat and breakout rooms in Zoom, so the file sharing function may not even be available.
It is crucial to make sure all parties are on the same application platforms to easily follow group communications and data transfers. For trial teams (including trial techs), they will need to confirm alternate communications and have their own private cloud share as well.
- Security is Important
Make rooms private where possible and assign someone to vet participants as they enter the discussion. Zoom has a “waiting room” where people must go before being allowed in as means to prevent “Zoom bombing.” Someone will need to monitor that area for attendees if the proceedings are open to the public.
As web hosting may not be 100% secured, review and understand the security policies of your web application and best workflows. Zoom is constantly updating their security features; make sure everyone has the latest build.
As Alicia Aquino puts it, “The COVID-19 pandemic has created an opportunity for the legal industry to embrace technology and move cases through a virtual space. Although online jury trials are not ideal for long term, it is a viable option until we can all safely enter the same courtroom together. Although most courts are already familiar with Zoom for online hearings, there is an opportunity for a platform to be customized specifically to our industry and online courts.”
While there are certainly other challenges that will continue coming up, a little planning, preparation, and communication can go a long way. Things have definitely changed in the past few months, but it’s exciting to see how our industry is leveraging technology to keep the justice system moving forward.
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