How to Prepare for a Virtual Hearing

Everyone has been adjusting to the new reality of virtual hearings. This brings with it a whole new set of challenges, both technical and substantive. Judges now have to assess credibility through a computer screen. Responses are delayed, and it takes a bit more than a second to unmute to make your objection, no matter how quick you are.  To prepare for a successful virtual hearing:

1. When preparing your testimony, prepare for the camera:  I am used to meeting with clients in advance of their hearing to review their testimony and any anticipated cross-examination, to review exhibits and to refine my questions. Now, using a webcam needs to be added to that list. Think about the space where you are appearing to ensure that you can be clearly seen by the court. Any space where a client (or attorney) plans to conduct the hearing needs a strong wireless signal so the sound is not muted or the image broken up by a delay. The lighting needs to be adequate so the judge can see your face clearly, and you need ongoing access to a power source so that your device continues to function properly. Also, know your angles – no one wants to spend the hearing looking up your nose or seeing just half of your face, so be sure to elevate and angle your camera as needed.
2. Practice how you speak:  Make sure you are aware of where to look when speaking on camera and practice in front of a webcam to ensure that you don’t get overly nervous seeing yourself talk. Judges are new to this as well. You don’t want your credibility impacted by being unfamiliar with the technology. Remember, just like in court, you cannot use notes when testifying virtually.
3. Expect to spend more time on logistics:  Attorneys can make life easier on themselves and their clients by discussing the logistics of the hearing in advance with both court personnel and opposing counsel. During an in-person hearing, clients can easily lean over to whisper something or pass a note to communicate with their attorney. This is impossible when everyone is in their own space and Zoom box. While clients can text counsel, this causes a delay and can be distracting. Make sure that the court has authorized a means to communicate between clients and counsel participating in different places and practice with your attorney before the hearing starts. Be sure to discuss the use of objections to ensure that they can be heard when made.
4. Mark exhibits ahead of time: Pre-marking exhibits can make a virtual case run more smoothly since you obviously cannot hand exhibits up to the judge, who may also be at home and not on the bench. Otherwise, time and attention spans can be lost in the time it takes to find the item you are referencing. I like pre-marking exhibits with letters (e.g., A-B-C). This allows the court to mark exhibits with numbers if they prefer to follow that methodology. I also create a table of contents of all my exhibits and check them off as they are introduced (since I will almost certainly have exhibits that I don’t end up using or needing). At the end of the hearing, I can then easily move only the exhibits checked off into evidence. Make sure clients have the exhibits with them when they are testifying, either printed out or on another laptop to ensure they know exactly what is being referenced.
5. Consider a Virtual Hearing Space:  We routinely use our large conference room for virtual hearings since it allows attorneys and clients to be in the same room while socially distanced. Having our clients speak with us in real time during a virtual hearing is invaluable. While the space is not dedicated, it ensures that our clients can be better served if they are willing and able to travel to our office after agreeing to our COVID-19 safety protocols.
6. Roll with the punches:  Finally, concentrate on the object of the hearing and expect that things may not go completely as planned. I had one case where an enthusiastic cat made repeat appearances on camera while the witness tried to testify, and another where the judicial clerk’s father seemed to wander around in the background in his pajamas. These were moments of humor that don’t usually happen in the courtroom. If they happen to you, shrug them off. Just remember to be properly attired in case you unexpectedly need to stand (no pajama bottoms in court).

While we don’t anticipate that all virtual hearings will last forever, it looks like they will remain a reality for a while. Make sure you think about virtual hearings well ahead of time and prepare adequately for them with as much care as you would a hearing in a courtroom.

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