Virtual Trial, The New Reality
Updated: Oct 12, 2021
Prepare | Connect | Appearance and Attitude | Exhibits | Timing | Translation
By: Megan Lopp Mathias, Founding Partner and Emily Salomone, Law Clerk
Lopp Mathias Law was founded on the principles of innovation and technology. The legal industry generally has been slow and reluctant to the shift to technology and paperless offices. Paper files have been replaced with electronic files and cloud sharing; and now, because of COVID-19, in-person trials are being replaced with virtual trials. Some can be attributed to modernization of the legal industry, a "changing of the times", but the catalyst for change has been the COVID-19 pandemic crisis. With stay-at-home orders and closed courthouses, the legal industry had to pivot nearly overnight. The shock was less deleterious to the clients of Lopp Mathias Law (www.loppmathiaslaw.com), as our firm's model emphasizes modern law practices, cutting edge technology, and most importantly--how to marry the two.
Virtual trial and electronic evidence has quickly become the reality in the legal industry. Many court appearances and trials have moved to Zoom and other encrypted conference video services. Lopp Mathias Law has been using electronic evidence for years - which is a significant competitive advantage over our competitors at trial. We have our process refined for utilizing and organizing electronically stored information. Understanding what to expect, being proactive, and quickly adapting to this change is the difference that allows your trial to be a success.
Prepare, Prepare, and then Prepare Again.
The biggest factor of success amidst the adoption of Zoom video trials is: preparation.
Before the trial is set to begin, become comfortable with the software, evidence and equipment. Try it out on one or two devices, and of course, mainly the one you plan to use during trial. If you plan to attend trial on your computer, practice on the same computer. If you plan to attend trial on your iPad, practice on your iPad. Evaluate settings, since many settings and setting locations are different from device to device. Do not get tripped up on trial day. Most all software will allow users to run their own meetings, test their microphones/video, and become familiar with the interface before they even enter the scheduled trial. If you’re using Zoom, consider looking through these tutorials to become familiar with how to use the program. Additionally, some judges are embracing the technology wave and have released virtual courtroom training videos to their YouTube channels regarding hearings, depositions, and Zoom in general. Here is a great Zoom Remote Hearing Training from Judge Emily Miskel's YouTube channel. If you have any questions not answered by trial and error or tutorials, a quick search or message to someone you know who uses the platform should provide your answer! Use your available resources.
Get Connected. Stay Connected.
Once you understand the program you will be using for the trial, make sure you have a reliable internet connection.
Consider the more secure and faster ethernet connection versus your average Wifi connection. Learn more about why here. Using a desktop computer will provide a more stable connection and turning off HD settings can make videos run more smoothly. Digital hearings can be particularly difficult for people without high-speed internet. Poor internet connection can result in unclear or pixelated images when sharing exhibits, be sure to check in and make sure that your timing is the same as everyone else's. Assure that the program you're using has access to your camera and microphone and test both of these things. If it is difficult to hear you, consider using an external microphone. Log into meetings a few minutes early so that you can fix any technical issues in advance.
Appearance & Attitude Matter in an Online Courtroom, too!
Be mindful of how you are dressed, where you are positioned, and what is in the background of your shot. Maintain the same professionalism you would for an in-person trial.
It is recommended that you wear professional clothing in soft, solid colors. Judge Dennis Bailey, on behalf of the Weston Bar Association, released a statement asking attorneys to dress more appropriately for trial. In the statement, Judge Bailey says that judges have seen many lawyers wearing casual outfits, but maybe more memorably, “one male lawyer appeared shirtless and one female attorney appeared in bed, still under the covers.” By now, many of us have seen the video of Will Reeve, who was recently caught on camera (in our own words) a little too "business on the top, party on the bottom". He gave his Good Morning America report in full professional attire on top, but was in his boxers and didn't realize the camera would snap to a wide shot of him in his skivvies before he could sign off. Though entertaining, let's make sure you're not the next Will! Get fully dressed. You might be asked to stand up or have to move around a bit in your virtual trial. One should frame themselves so that the camera is eye level, and in front of a neutral background. Is the camera angle doing you justice? Make sure it is. Ensure you have enough lighting in the room. Light from a window behind you will shadow your appearance. Soft front facing light will give you a nice glow. Additionally, be sure to uphold the same seriousness of an in-person trial despite the virtual nature of today's online trials. Maneuvering technology can be weird for everyone, but don't let it become less serious for you because of the awkwardness that might come with it.
Next Exhibit Please...
Your exhibits must be thoroughly thought through and provided ahead of time.
It is important to share the exhibits with all participants in advance because of the inability to share them in person. Sending exhibits in advance will make the processes quicker and smoother. Recognize that some actions which may be beneficial in a live court proceeding can slow or inconvenience virtual proceedings. By sending exhibits in advance, everyone is able to view them electronically when they are being discussed. If one waits, there is a possibility someone will experience technological or formatting issues that can inhibit the process. When possible, mark exhibits in advance. One option is to already have all markings on the exhibit, another is to make markings in steps and then present them with a PowerPoint. Should you choose to mark exhibits in real time, practice with available software before the trial begins. Virtual markings can be unclear and slow in real time.
The exhibits should be downloaded on a computer for screen sharing. Trying to access documents online while connected to Zoom can create an additional hurdle.
If you plan to show the exhibit on screen, ensure it is clear and easy to follow. In your test run of the Zoom software, practice using the share screen feature to test this. If you plan to have exhibits marked during the proceeding, practice with the technology you will use. If you plan to make markings in person, recognize that most computers default to the mirror effect. You may need to manually change this effect so your words will not be displayed backwards. This is true for evidence as well.
Timing is Everything.
Attorneys need to pay acute attention to their timing in virtual trial and be ready to practice patience.
Some things that go quickly during in-person trials go slowly during virtual trials. Your virtual trial will almost always take longer than one in-person because of the challenges virtual trials present. There may be lag time in the audio, more instances of individuals talking over each other, distractions, connectivity issues, pixilation when presenting exhibits and documents. Practice patience. Stop in instances where your audio has lagged or cut out. Speak slowly and clearly next to the microphone and pause more often to allow the court reporter to keep pace. The pacing for the court reporter will also be longer than normal. Make sure others are finished speaking before you begin because it is particularly difficult for court reporters to transcribe virtual audio where more than one voice is speaking at a time. Be prepared to repeat yourself in instances where you were not heard for the court reporters and other members of the trial.
Don't Get Lost in Translation.
Question and plan for a translator even sooner than you would in an in-person trial.
When a translator is necessary, courts recommend having the interpretation occur sequentially instead of simultaneously to avoid the issues mentioned previously. If helpful, closed captioning is often available, though the captions provided are not always accurate. The bottom line when it comes to translation- know if you'll need it ahead of time and then plan accordingly. This applies to exhibits that need translation too.
Virtual trials are a new experience for many, but they also provide a new platform for individuals who may otherwise have a lot of difficulty attending trial in-person. Virtual trials and the know-how that come with them, are necessary now because of COVID-19, but it can be expected for them to remain in use even after courts reopen. The pandemic has caused the legal industry to evolve - in good ways.
Don't get left behind when it comes to virtual trials and how to do it well- the legal world was moving in this direction, even before the pandemic hit! Attorneys who aren't stepping up to the plate with sound law practice, much preparation and thought, and tech savvy skills are at risk of being left in the dark, but more importantly, letting their clients down in a big way.
Prepare. Stay connected. Uphold appearance and attitude. Present clear exhibits. Pay attention to your timing and practice patience. Think about translation ahead of time. Easy, right?! By preparing oneself adequately, the virtual trial experience will most likely be smooth and successful- just don't get caught in your skivvies...
Megan (firstname.lastname@example.org) and Lopp Mathias Law are ready to represent you whether the trial is virtual or in-person.