Best Practices for Virtual Court and Legal Proceedings

“Best Practices for Virtual Court and Legal Proceedings,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Travis Hayes, ACTEC Fellow from Naples, Florida. During the pandemic virtual hearings and procedures became commonplace. ACTEC Fellow Lee McElroy of Palm Beach Gardens, Florida joins us today to offer best practices and advice for these relatively new types of court proceedings and legal procedures. Welcome Lee.

Thank you and welcome to the podcast. I’m going to jump right in and I feel like that’s an appropriate thing to do for this topic because when the pandemic came around, we were all thrust into this new world. What I mean by that is: I’d always gone to every court proceeding. I was always in court in front of the judge with clients in the depositions, in person. Maybe a phone depo, maybe a phone hearing now and then. But we’ve entered into a totally new world with online court, online depositions, and web-based depositions.

Starting in March of 2020, we’ve now had almost three years of experience and I’ve been fortunate, or unfortunate, enough to have at least three online trials completely over Zoom. One one-day trial and two five-day will contests. I’ve also done innumerable mediations and depositions online over different platforms, whether they be Teams or Zoom. Today, all I hope to do is present you with some options for how to present best practices and to make sure that your side’s analysis, your information are presented in the best light possible to your trier of fact, or you can take the most effective deposition that you can. And that’s really what I want to focus on.

Prepare and Test Your Setup Before Your Court Hearing

Florida was definitely at the forefront of this, allowing this technology to be pursued. In fact, in the county where I practice, if you have a court hearing under two hours, it’s going to be presumed that it’s going to be over the Zoom platform. So, practitioners are being forced to adopt these things.

And so, let’s start with the most basic and fundamental. Have a good setup. Test your microphone. Test your video. Make sure don’t have an inappropriate meme or covering or background when you start this process. Check it before the hearing. If your hearing’s at 8:45, you wouldn’t just walk into the courtroom at 8:45. Make sure your platform is up and running at 8:40 because the last thing you want to do is you’re ready to start your hearing and Teams has to update.

And now, you’re late for your hearing and the judge is wondering what you’re doing and why you haven’t logged on yet. And while we’re talking about the different platforms, that’s a whole other topic. In different counties, different judges have liked different platforms. So, you need to be familiar with each platform, whether that’s Zoom, which seems to be the most common for my particular practice, or Teams or WebEx, or whatever platforms out there. Make sure you know what that platform is going to be and you have familiarity with it. Again, for me, going in it was definitely trial and error, and seeing what other good attorneys did to prepare.

Know Court Administrative Rules and Preferences

How they set up their documents made a big difference and that’s what I hope to present to you as part of this. So, I think, every time you say, “I’m going to appear before a court,” what should you do? Read the court’s administrative rules. Read whatever you can find out about that judge. Does he or she have a particular preference for how they like people to appear? Do they use Teams? Do they use WebEx? Do they use Zoom?

Have Materials On-Hand and Set for Use

Do they want the documents sent to them ahead of time via email? Do they want them uploaded to a portal, or, are you able to just share your screen? So, what seems to be the most common for me is that we end up sharing our screens a lot. And a lot of times, people will try to access documents from different platforms, whether they’ve got a jump drive or they’re connecting to their server through a laptop or whatever system they’re using.

My personal preference, unless it’s hundreds of documents, is I’m going to have my documents not only loaded on whatever device I’m going to be using, I’m going to open them ahead of time. They’re going to be on my screen in different tabs. And so, when I go to share, I know my document is there. I know where to go, and it’s already pre-loaded and my computer doesn’t have to take that extra step to access my server and take extra time or slow down the connection. Because obviously, all that leads to frustration and problems.

It goes back to make sure your setup is correct. We’re talking about how your computer’s set up. What about where you are? Now, listen, we can’t always stop people from outside from doing lawn work or cutting bushes. But you can try to do your best. And if you’re going to be in your home, make sure you don’t have the dog run in. Make sure you don’t have kids running in.

Dress the Appropriately for Court

Make sure you’re dressed appropriately. You’re still in court. Even if you are not going to be on-screen or they can only see the top of you, make sure you’re dressed appropriately because you might have to stand up to get a document, and heaven forbid, you don’t have the appropriate attire below your waist. So, again, just simple, basic things you can think of and do ahead of time to prepare.

Communicate with Opposing Counsel

Beyond talking to the court and making sure you know what the court wants, I would say the second most important thing: talk to your opposing counsel; if you know your opposing counsel, if you can trust your opposing counsel, it will make things infinitely easier.

You can share documents. You can clear documents ahead of time. You can exchange exhibits through Dropbox or other large file-sharing services, and you can get it all out there. And you can share it with the judge.

Present Organized Information During the Court Proceeding

Now, when it comes to a trial, you’re going to be having a lot more documents than normal. And I find that while some judges are very technologically savvy, it’s still easier to practice if they have paper. So, for the two larger trials that I did, in addition to sending the judge every document electronically, I prepared tabbed binders so that if I said, “Judge, I’m going to Exhibit 15,” she could simply go to the binder, turn to Page 15 and look at the document.

She doesn’t have to take up whatever screen she’s got with a document, can still see what I’m asking about. It makes it so much more effective to have your presentation, so the judge knows exactly what you’re doing and where you are.  Again, it seems it’s an extra step you need to do because before we’d just send it. Now we’re uploading it on our computers but it is a more effective practice. I say Zoom because I use that the most.

The Zoom tools allow you to make very specific points if you can use them correctly. Again, if I’m on Exhibit 15 and there’s a particular section that I want to hit, I make sure the judge has it in front of her, and then I can share my screen. Then I use the functions to highlight a specific section that I want the witness to focus on. And again, when I shared my screen, it’s blown up so that if the judge is looking at it, it’s highlighted; I can focus the opposing party’s attention on it and use it to emphasize that point home.

So, rather than just hand the document to the judge, say “Look at Exhibit 15,” I’ve got in front of her and I can highlight it. So, there are some real advantages to not just appearing in person and actually using these platforms for better purposes.

Cross-Examining a Witness in a Virtual Court Proceeding

And, when you’re in trial, you’re cross-examining a witness, it’s a very different process than if you’re live and in person. You’re looking at somebody through a very tiny window. If you’re sharing a screen, you might have 2 inches of space to see them. Again, you need to be extra prepared to have your documents ready to go because it’s not an instance where you can go grab a document. You have to have it all pre-loaded, all ready so that you’re able to make an effective cross-examination if that witness goes off-script.

For me, all my cross-examinations, I’ve got their depo tab or whatever document I’m going to use to impeach if they go off-script. So then, I know, if they go off-script, I just simply open the document, share the screen, and refer them to the proper exhibit. Again, it’s small things like that that will make the process faster and make it better.

Virtual Court and Legal Proceedings Backup in Place

Overall, forget depo, forget trial. Make sure you have a good setup. Make sure a mic works. Make sure that you can hear. A lot of people have talked about the need for a backup. One of my clients was being deposed by a very good opposing counsel. My building lost power. It wasn’t just that my computer froze. My whole building lost power. Completely shut off. Now, fortunately, I knew opposing counsel and I simply called him immediately from my cellphone and said “You’ve got to stop. I’m completely kicked off and I don’t know when I can get back on.”

But if you have a really important hearing, a lot of attorneys will sign on through two computers just in case one doesn’t work, or they had their cell phone next to them with a Zoom or WebEx loaded, ready to go if they have a bad connection. So, again, you’re trying to make a good impression on that court. You’re trying to make a good impression for your client against the other party. You need to have your bases covered.

Virtual Deposition and Trial Tips

Now, I’m going to shift topics a little bit and talk more specifically about either some deposition or some trial tips that will help. For the depositions, one of the biggest concerns I have for any Zoom or online deposition is, I don’t know who’s in the room. So, I’m going to start and talk about what I call “the best practice,” and then we can go down in the order of what you can do to mitigate problems you might have.

A best practice is to have the court reporter in the same physical room as the witness, even if nobody else is there. That way, the court reporter knows if they’re checking their phone, if they’ve got documents in front of them, and if they’re communicating with anybody. You have somebody, a third party, eyes on that witness who can see the entire room. I think that is critical because, a lot of times, even witnesses who you might think know better don’t. And there will be people in the room. They will have documents in front of them.

There was a Florida lawyer sanctioned severely for texting with his client during a deposition. And he was only caught because somebody noticed that the witness kept looking down in a certain direction. So, you need to be cognizant of those issues, and the best way to nip that in the bud, have the court reporter present.

Now, if the court reporter can’t be present, what’s the next best thing? Have that person who’s being deposed take the camera and do a 360 of the room to show everybody who’s in that room, so you know everybody who’s there. Again, you can’t prevent somebody from sneaking in, but that’s the practice.

Then, when you go on the record, ask them under oath: “Do you agree nobody’s present? That nobody has come in since you’ve shown the room? That you don’t have any documents other than those that are here for the depo in front of you? That you’re not communicating with anybody? That you’re not going to communicate with anybody?”

Again, all you can do is try to mitigate some of these things that would be more obvious in an in-person setting, but those are better than doing nothing at all. Because the problem could be if you don’t do that, and it turns out you learn they were communicating. If it’s a third-party witness, they say “I didn’t know any better. Nobody told me that,” you’re not going to have the same effectiveness in going in front of the judge and asking for some sort of sanction versus if you said: “Listen, you agree you’re not going to communicate with third parties. You agree that nobody else is in the room with you. You agree nobody else is providing you with information during this deposition.” So, again, hands-down, best practice, have the court reporter be there, even if neither of the attorneys are there. And if the court reporter can’t be there, have them show the entire room under oath and then walk them through a number of questions.

Attorneys Agreed to Deposition Stipulations in Advance

One example I’ve seen is having the attorneys enter into a stipulation about how those depositions are going to proceed; what’s going to be done to make sure those witnesses aren’t communicating with third parties. That’s an excellent way because that way, both attorneys and all parties are on record with the court that “Yes, we agree this is the process that we’re going to follow.” And if they don’t, everybody’s liable to sanctions from the court. Now, in talking about depositions that brings to mind, well, if you’re taking a deposition or defending a deposition. When I defend a deposition, even if it’s going to be Zoom, I’d prefer that my client be with me because, again, it’s just easier to do everything.

Again, be very open with opposing counsel. I let them know “Yes, they’re in my office. They’re just on a different device. Everybody can see everybody. Everybody’s ready to communicate.” But it’s easier to practice that way versus if they’re on another device in another location, it’s just more difficult.

Again, it goes back to how you set up. Some people just want a simple headshot. Some people want a broad view of the room. I’ve seen at some of the larger firms, they have large conference rooms with these giant tables, and the camera’s set up on a screen at the far end.

Well, sometimes that’s actually counter-effective because it’s so far away you can’t see when that attorney is communicating and it’s hard to understand when she or he is done communicating or presenting whatever they’re going to be doing. So, make sure your camera setup is good.

Consider Using an IT and Technology Specialists

The last thing that I’ll talk about for this is just a tip: consider using sort of an IT specialist if you’re going to have a significant trial, a multi-day trial, where you’re expected to conduct everything over some sort of online or web-based platform and you’re presenting evidence and making sure the exhibits are running and you’re making sure everything’s getting in, the last thing you want to be worried about is that kind of stuff.

You should be focused on your case. You should be focused on: is the evidence that I need to get in admitted? Are the witnesses testifying the way I want it to go down? Am I impeaching the people that need to get impeached? Are my arguments ready to go? Am I paying attention to make sure evidence is properly excluded or admitted? Consider bringing in an IT person to run your Zoom platform, make sure that everything runs, make sure there’s a backup if your connection dies; make sure that all your exhibits are good to go, and you can simply say, “Go to Exhibit 15,” and you don’t have to sort through and do it.

Me personally, when I did my trials, I was comfortable using it. I was comfortable doing it. But that’s just me. Everybody’s got a different level of comfort with whatever platform they’re using. I would suggest, for what a trial costs, if you’re going to pay a tech person $100 an hour to maintain it, it’s worth its weight in gold to know that you don’t have to worry about it. Anyway, those are just some of the things that I think would be best practices for you. And I want to thank everybody from my group who participated and supported this presentation. Thank you for your time.

Thank you, Lee, for discussing best practices and tips for handling virtual court and legal proceedings.

 

You may also be interested in:

• Podcasts Regarding Technology Recommendations
• Podcasts Regarding Trust and Estate Litigation

This podcast was produced by The American College of Trust and Estate Counsel, ACTEC. Listeners, including professionals, should under no circumstances rely upon this information as a substitute for their own research or for obtaining specific legal or tax advice from their own counsel. The material in this podcast is for information purposes only and is not intended to and should not be treated as legal advice or tax advice. The views expressed are those of speakers as of the date noted and not necessarily those of ACTEC or any speaker’s employer or firm. The information, opinions, and recommendations presented in this Podcast are for general information only and any reliance on the information provided in this Podcast is done at your own risk. The entire contents and design of this Podcast, are the property of ACTEC, or used by ACTEC with permission, and are protected under U.S. and international copyright and trademark laws. Except as otherwise provided herein, users of this Podcast may save and use information contained in the Podcast only for personal or other non-commercial, educational purposes. No other use, including, without limitation, reproduction, retransmission or editing, of this Podcast may be made without the prior written permission of The American College of Trust and Estate Counsel.

If you have ideas for a future ACTEC Trust & Estate Talk topic, please contact us at ACTECpodcast@ACTEC.org.

© 2018 – 2024 The American College of Trust and Estate Counsel. All rights reserved.