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Navigating the Virtual Courtroom

Posted By USFN, Thursday, June 18, 2020
Updated: Wednesday, June 17, 2020


by Kip J. Bilderback, Esq.
Millsap & Singer, LLC
USFN Member (KS, KY, MO)

In this time of COVID-19, we continue to see a “new normal” arise to allow our professional work to continue while maintaining as much safety and social distance as possible. E-filing has long been utilized by many courts, and, as an industry, we seem comfortable in utilizing that technology with good internal execution processes in place to assure the quality of the filings. What had not heretofore been utilized as frequently is remote hearings, by telephone or by video.

Regardless of whether the hearing will be video or telephonic, some important considerations should be made. First, understand the protocol your court will be utilizing. Will you call in and be put in a “waiting room” until the judge is ready? Will the court initiate the call? Do you have special software you need to use? If you are dealing with additional technology, you may wish to test out those systems in advance of the meeting. Second, make sure your pleadings and exhibits are in order, properly labeled and appropriately shared with opposing parties and the court. As with all things, you should include everything you need, but be careful not to overdo the documentation in that many people will be handling those documents in line with your argument.

Third if you are a witness or you are using a witness, be sure that you are both “on the same page” with regard to the aforementioned items. Fourth, consider from where you will be attending the hearing. If you are at home, are you in a segregated area to minimize possible interruption by your “work from home colleagues” – dogs, cats, children, spouses or significant others.

With specific regard to telephone conferences, one should be aware that an inability to see removes certain social cues we take for granted. You cannot see whether the judge is annoyed with the length of your argument.

You cannot see a witness’s reaction to a question you may have asked. Consequently, it is important to be vigilant and clear in your communications, using vocal tonality more thoroughly. Also, to avoid confusion or “talking over” another, one should be very courteous to others, making sure no one is speaking before you speak. You may also wish to signal verbally as you complete your portion of a discussion, allowing others the opportunity then to speak. Last, you should try to stay in one place during the entire hearing. Recently the Supreme Court of the United States held oral arguments virtually. At one point in the proceedings, the sound of a toilet flushing was clearly heard in the stream.

With specific regard to telephone conferences, you should be aware of your surroundings, your lighting and the picture you present in the video frame. Do you want to send a “professional” message by being in front of an attractive bookcase of legal books? Do you want to be in a neutral background, such as in front of an office wall without distractions? Is the light better in one room, or can you put a light on you? If you are in a dark room, you may look more like someone in the witness protection program than an attorney. Be sure to dress in accordance with normal court requirements, including bottoms. It will help keep the feeling of professionalism throughout the proceeding. Last, realize that, in many situations, your video will be in front of everyone at the hearing. Unlike a courtroom, where you might roll your eyes a bit or turn to your client to say something and can hope not everyone will notice, your face will show everything at all times.

Again, as we progress in this world of the “new normal,” we will find more ways to be productive remotely, and in many cases, the well prepared may be even more successful than others.


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