Courts are embracing online hearings and trials in light of the new coronavirus pandemic. Once one contemplates the process of a “Tele-Advocacy” hearing, and gets past the fear of technological glitches, the “new normal” is not that much different from our “old normal.”
A typical hearing using Tele-Advocacy would look like this: the judge would send out the information or link that would be valid for a particular date and time. The attorneys could then use this information to file any pleadings or give for any pleadings they are setting for that hearing.
The advocates, witnesses, judge and court staff (bailiff, court reporter and administrator) would sign onto the link at the hearing time from a portal that has the ability to use audio and video. Most smart phones and tablets suffice although may not be preferred as some limit the video conferencing capabilities.
The court would then conduct the hearing via the online platform. Based on the online platform, the advocates would have the ability to use the features to conduct their hearing such as screen sharing to publish exhibits, breakout rooms to discuss any pre-trial agreements with opposing counsel or even to sequester witnesses during the solicitation of testimony, and even providing the option to access to the public by releasing the link to the hearing room prior to the scheduled hearing.
During the past week and transition to “social distancing,” one thing has become clear. Tele-Advocacy is the answer to ensuring justice continues to be served in the court system, as well as the way for the court system to prevent unworkable backlogs.
Guidance for the “Tele-Advocacy” Skills
Tele-Advocacy bears minimal differences than the advocacy attorneys learn and practice in-person, albeit in a forum many of us may not yet feel comfortable. This is not a time, however, to leave our litigation background and trial advocacy teachings at the door. It is simply a time to adapt.
Below is some guidance about how to adapt your advocacy skills to an online format:
- Familiarize yourself with the “courtroom:” One of the steps a good litigator takes to be prepared is to become familiar with the courtroom in which you will have the hearing as well as becoming familiar with the judge’s procedural requirements. When “tele-advocating,” you also need to be prepared. But instead of physically walking into a judge’s courtroom, prepare by logging into the online courtroom early and learning how to navigate the online platform.
- Witness preparation: Similarly, preparing your witness for our “new” normal is an important task. Although in a physical courtroom, you may bring your witness into the room and explain where the witness will sit and where to look when answering questions, this, too, is no different. Prior to the hearing, ask your witness to set aside time to go through the online platform with you.
- Using exhibits to punctuate advocacy: Exhibits support and corroborate cases. The use of exhibits in an effective manner does not change in an online forum. Prior to the hearing, be sure to share the exhibits with opposing counsel as well as the court. After admitting an exhibit, most, if not all, online platforms permit for publishing of exhibits by sharing your monitor with the video participants.
- Presentation skills: Trial Advocacy 101 teaches attorneys to keep your voice raised, speak slowly, and be sure you maintain good eye contact. “Tele-Advocacy 101” maintains the same requirements. Test your microphone/audio when you enter an online hearing. Practice looking directly at the camera attached to your computer for best eye contact in an online video forum. That’s something that is particularly different, yet easy to adapt. You want to continue to make sure you do not speak over anyone in an online forum as that becomes particularly confusing.
- Exercise patience: We have all been taught to be patient in a courtroom. Be patient with witnesses, patient with the jury, patient with court staff, and patient with the bench. Online tele-advocacy is no different. So what if there’s a technological glitch that requires us to re-ask the same question because someone’s microphone wasn’t working properly? Haven’t we all been in a courtroom where the real microphones in an in-person format worked equally bad?
- Exercise forgiveness: No matter how many times you read your opening statement outline or your closing argument bullet points, you most certainly have had memory glitches. At any given point of the trial, the case went on. The trial continued. So, too, will it be online. Of course there will be problems with technology when conducting a virtual hearing, but if jurors and judges alike are forgiving of memory glitches in an in-person format, why shouldn’t litigants, parties, and the court be equally forgiving when you forget to turn your microphone on?
Safest, Smartest Proceedings
As the country receives varying demands to essentially “lock down,” what better way to continue our jobs and ethical requirements as attorneys than in an online format? Do not lose sight of the benefits of tele-advocacy. Not only is there no commute, but no one can see what shoes you are wearing underneath counsel’s table!
But most importantly, creating and offering an online courtroom forum is the safest and smartest way for us all to proceed in this time of uncertainty during the Covid-19 pandemic.
Who knows? Maybe after our country gets past this pandemic, our “new normal” will become the status quo and some of these hearings we were all so hesitant to embrace in an online format will continue as such far into the future.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Sally Pretorius is a family law attorney at KoonsFuller in Dallas. She is certified in Family Law by the Texas Board of Legal Specialization.
Elizabeth Lippy is the founder and director of Trial Advocacy & Consulting LLC and assistant director of American University Washington College of Law’s Trial Advocacy Program.