Zoom for Hearings

Zoom is now a part of our daily vernacular. We Zoom regularly with friends and family and, for many professionals, we are now using Zoom and other virtual platforms for work purposes. A number of courts are using Zoom for hearings. After conducting numerous multiday hearings over Zoom and similar services, I want to share some thoughts about the challenges and value of virtual platforms.

Thankfully, two of my custody trials had started in person, but were completed virtually. In one case, the parties, counsel and the Judge had all been physically present during the first five days of trial. What is most obvious about Zoom is that it is extremely difficult, and perhaps impossible, to read body language from a head shot on a computer screen. In motions hearings, this may be less concerning, but in a custody trial, where the credibility of the witnesses and the parties is so important to assess, Zoom creates a significant hinderance in being able to do so.

Prior to the hearings, the parties and the Court needed to work out the exchange of exhibits. In most cases, the attorneys were required to pre-mark and exchange exhibits ahead of time and send them to the Court. The Court had also directed that counsel, the parties and any witnesses have access to e-mail so that if last minute exhibits were necessary, they could be shared via e-mail.

Then, in each case, my client and I needed to figure out how we would set ourselves up physically. In some cases, the client and I would be in completely different locations, which created an issue about how we would communicate with each other. In those situations, we would communicate by text during the hearing (as long as my client was not testifying). This was not ideal as there was a lag in communication and I had to hope my clients were looking at their phone. In other cases, we were physically situated in my office suite. During the time my clients were testifying, they would be located in a conference room on my laptop while I was in my office on my desktop. If my client was not testifying, we were able to be together in my office where we would social distance, with my client on one side of the room and me on the other. So that there was no feedback, the laptop was muted and all sound turned down. The client was able to both watch the proceedings and be seen, while listening to the hearing through the speakers on my computer.

Then came the hiccups. In one hearing, on both days, it took over 45 minutes before the Judge joined the call and, at one point, the recording equipment stopped working, resulting in a full stop for about 20 minutes until that issue was resolved. There was difficulty in sharing the exhibits on screen, which meant everyone wasn’t necessarily on the same page, making the practice of referring to exhibits extremely time consuming. Additionally, it is extremely difficult to cut off a witness on Zoom when the answer goes well beyond the question asked it is very easy for witnesses to talk over attorneys on Zoom. During my cross-examination in one matter, in order to stop the opposing party, I had to raise my voice and interrupt her, speaking more forcefully than I ever would have to if we were appearing in person. Objections were difficult too. I would mute myself when the other attorney was questioning a witness so that the noise of me shuffling papers or ripping pages off my tablet were not heard by all. However, doing so meant that by the time I unmuted myself to object to a question, half of the answer was already out.

While I am thankful for courts implementing the use of virtual hearings to prevent backlogs, this setting definitely presents new challenges.

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