For the last ten years, I have had the pleasure of litigating before state and federal courts in Delaware (among other jurisdictions). The judges in Delaware are as advertised: whip smart, extremely hardworking, knowledgeable about the issues before them, and voracious readers of each submission to their court. The consistent excellence of Delaware judges creates an expectation that lawyers appearing before Delaware courts be equally prepared, focused on issues helpful to the trier of fact, and skillful with their arguments. Even for experienced Delaware lawyers, demonstrating the proficiency expected by Delaware courts at in-person trials and hearings already was difficult. That challenge has become even greater now that the COVID-19 pandemic has relegated litigants to the virtual realm — a reality that might outlive the health crisis. Reflecting upon a recent trial before the Court of Chancery, I concluded that virtual proceedings, while possible from the comfort of your home, are worthy of at least as much planning and intentionality as a live appearance. Below are some of my thoughts on the subject.
Be obsessively prepared
It is common for a litigator to have written outlines for arguments, pre-drafted questions for witnesses, carefully curated exhibits, and scripted objections to exhibits or responses to anticipated objections. The more seasoned a lawyer becomes, the less time he or she may spend on certain aspects of trial preparation. For virtual trials, however, it is extremely important to plan and script out as much as possible. Since most lawyers and witnesses will be sequestered in their respective homes or offices for virtual trials, it is far more difficult to make last minute adjustments and changes. For instance, lawyers cannot simply pass a note to co-counsel during a cross examination, as might regularly happen during an in-person trial. In addition, there will be technical glitches that will eat up trial time and press trial lawyers into service as amateur tech support specialists.
The solution for these challenges is to plan out as much as possible. Below are some tips:
- Use detailed witness outlines that contemplate objections and plan for the exclusion of certain evidence.
- Prepare witness examinations well in advance of trial and host practice sessions over the virtual platform that will be used at trial.
- Time the direct and cross examinations, including the introduction of exhibits. The actual examination will typically take a couple minutes longer than your practice sessions.
- Confirm that witnesses know the time of day they will be expected to testify and are logged in 15 to 30 minutes before. Plan to be in touch in case the trial schedule is altered in any way.
- Use a hot seat operator to cue up exhibits, demonstratives, and deposition transcripts; and provide the hot seat operator with outlines that highlight when and how those materials will be used.
- Provide the court with multiple flash drives containing copies of trial exhibits, deposition transcripts, and the operative pleadings.
- Depending on the size of the screen that will be used by witnesses, you should consider providing witnesses with hardcopies of exhibits that will be used during their examination.
- Conduct at least two practice sessions to test the sound and video on the computer or device you will be using, and to make sure that your witnesses, hot seat operator, and colleagues can use the platform effectively, including to resolve minor audio and visual issues.
It should go without saying that virtual proceedings are still court appearances so all lawyers and witnesses must be dressed appropriately. Yet, not long before this article was published, the Court of Chancery admonished an out of state attorney for appearing on camera on multiple occasions while dressed in leisure wear. That unforced error distracted from his side's presentation and drew the unfortunate ire of the Court. As a result, it is worth taking the time to emphasize to all witnesses and members of your litigation team that they must be dressed for court if they plan to appear on camera.
Another important point to consider is how lawyers and witnesses appear on the screen – often referred to as an avatar. A participant's avatar should be a forward shot of the person's face to mid-chest; similar to a passport or driver's license photos. Since people in the virtual courtroom will not be able to pick up on physical cues, an avatar focused on an attorney's face can alert the judge, opposing counsel, and court reporter when that person starts to interject or make an objection. But, since a person's avatar should be focused on his or her face, attorneys and witnesses should refrain from emoting unnecessarily in response to someone else's testimony or presentation to the court. Overly expressive faces may distract or even annoy the judge.
To improve the effectiveness of their statements to the court, witnesses and lawyers should refrain from using distracting or nontraditional virtual backgrounds. While some might be impressed with your ability to turn your picture on Broad Street after the Eagles Super Bowl win into a virtual background, others might be distracted by the celebrants atop greased up light poles. You are better served selecting a well-lit room or space with a conservatively colored and simple background.
Furthermore, for those who plan to appear virtually from home, it is imperative to find a room with a strong internet connection so that any presentation to the court will not be disrupted by audio and visual issues. Also, consider setting up your virtual courtroom in a space where noises from other parts of your home will not distract you or the court from the proceedings. I recommend a room with a lock or a part of your home where you are unlikely to be interrupted by someone walking into the room.
For attorneys accustomed to appearing in-person, many aspects of a virtual trial or hearing will feel foreign. Chief among them is that most virtual setups involve a lawyer seated behind a desk. And, it is from that seated position that the attorney does his or her questioning. In most in-person courtrooms, however, lawyers typically question witnesses while standing behind a podium. In my experience, standing up during presentations to the court improves a lawyer's ability to project his or her voice and to deploy the vocal range needed to change the tone of a particular examination. In addition, standing while a witness is seated likely creates the power dynamic needed to control that witness on cross examination.
As a result, I recommend that attorneys, who will have significant roles in a virtual trial, incorporate the use of a lectern that is tall enough for the lawyer to stand behind, and then position a tall stool or chair behind the lectern. That way, when the attorney is not addressing the court, he or she can be seated and taking notes. When the attorney needs to stand to object or to otherwise address the court, the tall stool or chair allows the lawyer to quickly transition to a standing position, which likely will catch the court's attention better than raised eyebrows might.
Although the COVID-19 health crisis led to an uptick in virtual trials and proceedings, the prevalence of online courtrooms likely will survive the pandemic. Those of us who have had occasion to appear in a virtual proceeding recognize that virtual courtrooms function generally the same way an in-person courtroom does. And, there are many situations where justice could be served equally in a virtual or live courtroom. There also is an argument that virtual proceedings can help conserve the court's resources, as well as those of the litigants. With that context, trial lawyers should prepare to incorporate virtual courtrooms as a routine aspect of their practice. Hopefully this article is a helpful start.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.