Zoom Trials: Same Dog, New Tricks
Blank Rome business litigation partner William Dorsey shares what he learned from a recent, two-day contested evidentiary hearing—including the need to wear pants.
Whether they are a temporary adaptation to the Covid-19 pandemic or the new normal, socially distanced video trials and arbitrations are now a reality. While many traditional trial skills are transferrable to this format, you will have to learn some new techniques to be an effective advocate on video.
Here are some of my observations from a recent, two-day contested evidentiary hearing:
“Pin” the witness to your screen
When conducting direct or cross examinations, pin the witness’ video so that you can see a full screenshot of the person’s face.
Every good trial lawyer knows the power of eye contact and facial expressions. Expanding the video of the witness to full screen will allow you to pick up on cues, build rapport with your own witnesses, focus questioning, and give you control of an adverse witness—the gold standard of effective cross-examination. I was surprised at how well the tried and true tactics work, even through a computer screen. In some instances, the format—and the close-up shot of the witness—makes them even more effective.
Organize and arrange delivery of exhibits in advance
Decide on a format for trial exhibits and ensure that you have an effective way of delivering them to the witness, court, and opposing counsel before trial begins. And then confirm everything again before starting. Nothing interrupts the flow of an examination quite like a witness—or worse, an attorney—trying to download an exhibit or open an email.
In a recent video trial, we used a single pdf format with bookmarked exhibits that allowed the parties to jump from exhibit to exhibit in a single document. It proved more effective than a folder of exhibits, which entailed multiple tabs and downloads. Whatever you decide to use, practice it beforehand and download everything to your computer.
Keep your poker face
A computer camera is on you at all times, and you cannot tell who has pinned or expanded the view of your face. It is never a good idea to drop your jaw when your client makes a damaging admission. It is even worse when there is a camera trained on your face.
No creative video backgrounds
Make sure that you and your witnesses have a semi-professional video background and are not backlit. No one wants to look up at your nostrils or have a view of your bed.
Look into the camera
The camera is the window into the courtroom. When you are looking at other screens or up into space during argument or questioning, you appear aloof or uninterested. I ended up printing my closing argument outline so that I was not looking up at a second screen and away from the judge and other participants.
Communicate with your colleagues
Establish a dedicated line of communication with co-counsel through text or instant message. One of the hardest things to get used to in a remote trial is not having your colleagues in the courtroom with you. Set up an electronic communication system to use during examinations so that you do not forget a line of questioning or miss an important follow up.
Use your telephone for audio
Dial into the trial using your telephone, not the built in audio function with Zoom or Skype. Preferably a landline. I ordered one for the first time in more than 10 years expressly for this purpose. Occasional freeze ups are fine when conversing with friends, but they are distracting and problematic when questioning witnesses or making arguments to the court.
Do not use a speaker phone
It can break up and cut off sentences. Invest in a pair of wireless headphones and recharge them during breaks or, better yet, have a spare pair.
Mute your line
Remember to mute your line as soon as the court orders a recess. Invariably someone will make an unfortunate comment during a break. You should also mute your line whenever you’re not speaking. This includes during defense of examinations. Unmute your line only to make objections. It is better to raise a late objection than to have the entire courtroom hearing you typing or shuffling papers.
By now, everyone has seen the unfortunate videos of people wearing a suit only from the waist up. During the course of a day, you will forget to turn off your computer’s camera before standing up. I will admit that I skipped the dress shoes though.
Finally, if you have a Zoom profile picture, delete it or make sure that it is something you would not mind having the judge and your opposing counsel view. There are some things you cannot unsee.
“Zoom Trials: Same Dog, New Tricks,” by William J. Dorsey was published in AmLaw Litigation Daily on May 27, 2020.
Reprinted with permission from the May 27, 2020, edition of the AmLaw Litigation Daily © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or firstname.lastname@example.org or visit www.almreprints.com.