Up Close and Personal: The challenges and Opportunities of Remote Litigation

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HOW TO PREPARE

BENEFITS AND

MOST POPULAR

FOR A REMOTE

DRAWBACKS OF

TECHNOLOGY

PROCEEDING

VIRTUAL PRACTICE

AND PLATFORMS

VOL. 44, NO. 2

FALL 2021

FAMILY ADVOCATE A PUBLICATION OF THE AMERICAN BAR ASSOCIATION | FAMILY LAW SECTION

Up Close and Personal The Challenges and Opportunities of Remote Litigation

BY BRENDAN HAMMER

substantive many of these temporary measures are (i.e., ver the course of the last year, practitioners in modifications relative to hearsay), it behooves all practitio­ family law faced significant challenges as a ners to become intimately conversant with those rules and result of the closure or partial closure of monitor any change to them. Moreover, given the particular­ courthouses to in-person proceedings. Thrust ity of our practices from courtroom to courtroom, having a into a brave new world of remote proceedings, similar familiarity with the intricacies of each judges ap­ attorneys and clients were challenged by the unique structure proach and limitations of the e-litigation ecosystem—both proce ­ to remote litigation—from court calls and exhibits to witness instructions and the flow of testimony and objec­ durally and substantively, as well as aesthetically and perfortions—is vital. While this observation is basic, it is also often matively. As someone who litigated evidentiary and nonevioverlooked. In more than one proceeding, the modifications dentiary trials and hearings extensively via remote means for of rules by the state supreme court of this authors jurisdic­ the last thirteen months, this author will share observations tion were unknown by many opposing counsel during and lessons learned, and also discuss some potential best deposition, hearing, or trial. practices to establish, maintain, or improve the remote litigation experience for family law attorneys.

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Know Your New Platform Basic Training Know Your New Procedure

Self-evidently, to begin to prepare for remote proceedings, becoming conversant with all relevant state and local rules and courtroom standing orders for remote litigation proce­ dure is critical. Given the often-shifting circumstances in each jurisdiction relative to the pandemic, state and county courts often implemented a wide array of temporary or emergency rules to facilitate remote litigation. Given how 8

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Another basic consideration is that, although all remote video platforms (i.e., Zoom/Microsoft Teams/Cisco Webex) share a number of common attributes, the particular features of the platform utilized in your jurisdiction must be mas­ tered, especially if it is not your primary mode of remote interface for conferences and meetings. Spending time exploring all of the operational options within the courts chosen platform is important not only for one’s own ease of navigation and appearance of competence, but also because

often the court personnel or opposing counsel may not be as functionally adept at the platform. More than once, this author had to assist in the deployment of more than one feature on a platform that appeared “disabled” or inoperable.

A thorough appreciation of the equipment or software that provide, improve, or refine the utilized platforms audio and video interface can be just as critical.

Know Your New Options With a detailed knowledge of the video platform, your equip­ ment, and the applicable procedure for remote proceedings, a necessary but often not sufficient groundwork has been laid. As litigators, we are charged with making a case on behalf of our clients. Doing so in the Wild West of video proceedings can often seem daunting. Fortunately, there are a number of additional pieces of equipment or software that can maximize the efficacy and aesthetics of the remote proceeding. For example, applications such as TrialPad and Dropbox can facilitate the organization, introduction, and tracking of exhibits and other materials. In addition, the investment of time and resources to procuring competent video cameras, appropriate supplemental lighting (i.e., ring lights or light boxes), and audio equipment (speakers, headphones, and microphones) will help us to maintain performative excellence as we litigate from afar.

Know the New Challenges Once the mastery of the “back end” potentialities of remote proceedings is complete, it is appropriate to consider a plan for ensuring that the mechanics of examinations and exhibits is achieved well before the proceeding occurs and that the integrity of the process is maintained during it. It is here that we should consider the ways in which our examinations are necessarily different than before. Given the small lacunae, or gaps, in audio that exist over a platform like Zoom, we must account for it accordingly in our direct and cross examina­ tions, as well as in our objections. Similarly, given that an exhibit at a remote trial is often placed upon the screen via a sharing option, conscious thought should be given to when and whether an exhibit is placed and/or remains properly upon the screen—and in the witness’s view. Likewise, engaging in a prefatory exploration of where a witness testifies from, what devices are present, or what third parties are present is wise. Alternately, a request for the witness to maintain their hands on camera or a wider camera view might be justified. The issue of witness “coaching” during testimony via remote means is a real one. In the experience of this author, the judiciary is accommodating and receptive to any commonsense, good faith requests to ascertain and preserve the legitimacy of the evidentiary process.

Next Steps Are You Readyfor Your Close Up? One factor critical to a smooth and (hopefully) frictionless litigation experience in remote proceedings is conducting

appropriate “dress rehearsal” experimentation with the client, your colleagues, the platform, ancillary equipment, and technology to gain facility with the mechanics of the process.

While it is necessary to be aware of how the screen sharing, breakout room, and other processes work, that knowledge is no substitute for utilizing them in a “real world” setting.

Conducting dry runs with clients, associates, paralegals, or other colleagues can be enormously helpful in this regard.

Working with the actual people who will be present at trial in this form of mock setting will help alleviate fears, identify pitfalls, and hone and refine the process. Many times, exhibits present a challenge within the remote proceeding. Hopefully, your jurisdiction will specify in advance the sequence and process for exhibit tendering and use at trial. If not, it is advisable to obtain a ruling from the court in advance, and to then practice that process prior to trial.

Relatedly, with or without exhibits, witness preparation for remote proceedings is exceedingly vital. Well prior to trial, it is advisable to schedule several Zoom conferences with one’s client. While most clients are familiar with Zoom, they may not be familiar with the intersection of Zoom with litigation. Where practicable, it is most advantageous to conduct several dress rehearsals with the assistance of other colleagues in order to recreate for all involved the multiple screens and multiple parties that the client will face on the actual remote proceeding.

Whether a proceeding is evidentiary or not, it is also useful to conduct timed rehearsals of all examinations and arguments, to account for the ways in which remote video proceedings can at times both increase and decrease (for varying reasons) the tempo, pace, and flow of an argument or examination.

Opening Night Small Screens and Large Stages: The “Theatre” of Zoom vs. In-Person Proceedings It is one thing to see an epic musical like West Side Story from your seat on Broadway. Facing up at the performer’s so-called fourth wall—the entire tenor, texture, and tone of the live action that we take in assumes an entirely different feel than when we watch the film adaptation of the same production from our living room television and comfortable sofa. No less true are the profound aesthetic and performative differences between in-person and remote proceedings. In the often cavernous courtrooms of our once and future practices, the counsel table, well, and witness box provided a spacious tableau against which we performed our litigation arts. It was a broad canvas. Now, we are shrunken and confined to the small space of what the camera alone reveals. In this sense, our sense of view is partially occluded, as is that of the court, the witness, or opposing counsel. In many ways this opacity deprives the litigator of certain of his or her natural advantages. But in another way, the intimacy of the camera can also be a profound boon, if done mindfully and with aplomb.

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While we can no longer approach the witness with a prowl, pivot on a dime, and gesture across the room, we can still do something no less persuasive in our remote world that we could not do previously. We can emote with even greater granularity via our voices and our visages. The remote video proceeding really is the Gloria Swanson moment of Sunset Boulevard—it is our close up, if we are ready for it. Under­ standing that our tempo, timing, pace, inflection, and amplification are even more acutely observable on an auditory level—our voices can sing a new song. Appreciating that our eyes, lips, cheeks, eyebrows, and hands are even more discern­ able on a visual level, our bodies can paint a new picture.

While we can no longer approach the witness with a prowl, pivot on a dime, andgesture across the room, we can still do something no less persuasive in our remote world that we could not do previously.

If it is not clear by now, this authors deep interest in the performative and stagecraft aspects of litigation in both the in-person and remote settings grows out of his background in the theatre. Understanding, as we all should, that litigation is no less a performance and no less an art than anything we see on stage or screen, when we can embrace the potentiali­ ties of video proceedings, we can ourselves become a new form of trial lawyer and a storyteller of a different sort.

In this vein, it is important to reflect on the fact that, in every evidentiary proceeding, the assessment of witness credibility is critical for the practitioner. Prior to entering the e-litigation ecosystem, the in-person assessment of credibility was done in a much more intuitive fashion. In a physical courtroom, we could take the entire measure of a witness from her or his place on the stand. With our eyes and ears, we could process the vocal and visual in ways that were 10

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almost unconscious. Now, via video, we must adapt our senses and litigation antennae to account for credibility in somewhat different ways. We must hear with slightly different ears and see with slightly new eyes. It is through the process of practice and rehearsal (as well as real-world experience) that we will determine the ways in which the small screen of video litigation both conceals and reveals in ways different from the in-person experience.

For those of us who have also participated in in-person masked proceedings, we must also hone and refine our sensory antennae on the question of demeanor and credibil­ ity. Although many of us still believe that facial expressions are avatars of credibility, the social science literature on this issue indicates otherwise. Indeed, in research settings and experiments, the ability of people to assess credibility from facial expressions is markedly less accurate than from verbal cues and/or larger body language. In light of this fact, we do well to deploy particularized attention to our active listening skills in the masked, but in-person setting.

As noted above, the audio and visual equipment we select should be of sufficient quality to provide the court and those viewing and listening to us with the best possible sound and image quality. No less important, the passive component of our audio equipment (speakers or headphones) should also be selected to permit us to have as clear and refined an aural experience as possible. In March 2020, at the outset of remote litigation, this author invested in a studio-quality boom microphone and headset. Although inevitable comparisons to radio disc jockeys came from the judiciary at first, the clarity of audio sent and received via this equipment has proven invaluable. After one multiple-week trial, the court reporter assigned to the matter even wrote to inquire about where to locate the equipment used, appreciating the articulation and clarity it provided in how he conducted his assignment.

In addition to equipment, the manner in which we present documents and exhibits to the court is not merely a matter of function, but also of form. While the raw mechan­ ics of marking, identifying, authenticating, and offering must be translated to the remote realm, the performative aspect of exhibit work must also be contemplated. For this author, TrialPad provides a substantive benefit when working with exhibits and permits the user to present and often mark or manipulate the materials in a compelling, frictionless, and smooth manner. As with equipment, software and applica­ tions that enhance the process for the practitioner tend to also have the downstream effect of improving and heighten­ ing the experience for the finder of fact.

The last feature of the “theatre” of the remote proceeding to be considered is not material but experiential, namely, how to gain a deeper and more thorough appreciation for certain persuasive and communicative considerations. On video, we can see each other s eyes in ways we cannot or do not when in-person in a courtroom. We can also see many others’ eyes and also our own. Because a platform like Zoom

permits a so-called gallery view, we can observe, in real time, all of the eyes, ears, and noses of everyone in the proceeding.

This can have a jarring effect upon our ability to remain engaged advocates and active listeners.

To address this potential ensnarement, one can turn off gallery view. In doing so, the temptation of visual distraction is eliminated with the exception of the active speaker, but so is our access to certain cues that are often beneficial to our orienting to the present moment. Alternately, we may elect to simply turn off our ability to see ourselves, which can be no less distracting. This too however is not without peril. As one of a few “boxes” on screen, when we cannot see our­ selves, we also cannot observe and orient to our place within the proceeding as others see it. While each practitioner will find her or his optimal position on this issue, it is advisable to experiment with each outside of court and ascertain for oneself what approach is best suited to be adopted. The reason this seemingly small detail matters so much is that it is related to the identified effects known as Zoom distraction and Zoom fatigue. Because of the unique demands that intimate, sustained video places on our neurocognitive systems, and ability to focus, understanding those features that can aggravate or alleviate the experience are critical.

Beyond the distractions of ourselves and others, there is the importance of establishing, maintaining, and exploiting our gaze for persuasive purposes. How many times have we participated in a remote proceeding, only to see another attorney staring off into the distance reading what might be

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another monitor or cue card? In these moments, we lose some material portion of our focus and attention because it is clear to us that material is being read. With good reason, newscasters, actors, and political figures use very-well-cali­ brated teleprompters. We view them without any truly discernable sense that they are reading. In our practices, we can achieve the same with a well-placed second monitor behind or proximate to the camera lens or even with printed material in large font affixed somewhere similar. Being able to engage with the camera in our remote proceedings is a consistently undervalued weapon in the litigation tool kit; but finding ways to create consistent engagement will benefit us well at the persuasive level.

Final Pitfalls and Pratfalls in Remote Proceedings

By now, everyone is familiar with the stories of Zoom snafus during remote proceedings. From hot mics and racy virtual backgrounds to the perils of the mute button and the active camera, most practitioners are aware of how not to inadvertendy commit the most glaring of errors. However, there are several lesser but relevant considerations for the attorney.

What Do They See?

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during your closing argument? How do you feel about the court and all viewers being able to see the books you read or what is on your desk? In other words, in the absence of a virtual background, ensure that whatever is in view of the camera is something that it makes sense for the court (and others) to see. Moreover, these considerations pertain to our clients as much as ourselves.

Relative to virtual backgrounds, if a practitioner opts to use one, a small investment in a so-called Green Screen is vital. Almost everyone is now familiar with the way in which our heads and limbs can often appear lost when overlaid against a virtual background. With a small expenditure, a retractable green screen will optimize the virtual background and the users appearance against it.

While it should go without saying, the issue of proper attire continues to be a problematic one on many levels. We are all familiar with the Zoom mullet—business above and a party below. While our cameras can be positioned to obscure our clothing below the waist, we should be cognizant of the potential issues that arise from indulging comfort.

Occasionally, impromptu breaks in the proceedings will be taken. In the heat of contested proceedings, it may be difficult to always ensure that video is terminated and reactivated at all times. More than once, early in the period of remote proceedings, this author forgot to deactivate his video and had to subtly return to his litigation position while attempting to give no glimpse at his Bermuda shorts or leisure wear.

Ultimately, however, it is the case that being partially casual in our or our client’s attire can also have an almost imperceptible but real impact at an unconscious level.

During in-person proceedings, donning a suit imbued each lawyer with a kind of professional armor of sorts. The garment was proper to its purpose, and each of us wore and acted in it accordingly. The dress code of the courtroom, then, is not merely a tradition like stuffed wigs; it is a reminder to ourselves and to others of the seriousness of what we do and why we do it. Can any of us credibly imagine cross-examination of a forensic custody evaluator while wearing jeans and a t-shirt?

What Do They Hear?

We all know the schedule for when our garbage collector, lawn care worker, or repair person usually arrives. If we are appearing for a proceeding from home, it is good to consider any overlap between these external sources of distraction and our litigation proceeding. While moving from a dedicated litigation space in his home library to another room (during a chimney repair that ran long), this author fell down a flight of stairs and broke two toes during a remote proceeding.

While the hearing was a success, the eight weeks in an air-cast taught a hard lesson about always being sensitive to the issue of noise. As with what appears on screen, what is heard off screen is no less relevant. From music, children, and 12

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other people in the next room to deliveries at the front door, the remote proceeding takes it all in, and therefore taking care and caution for ourselves and encouraging our clients to do the same are best practices.

Failing to Connect As we all know, Wi-Fi is often taxed, and the internet sometimes goes down. Knowing this, it is essential to ensure that you, your client, and your litigation team are prepared for the inevitable computer crash, failure of apps, or other outages. Even more so at home, where internet is often shared by a working attorney with children on Zoom at school, it no doubt goes without saying that investing in premium Wi-Fi and/or its extension via supplemental equipment is a basic prerequisite to participating in remote proceedings.

Privilege While most platforms permit for private “chats” or “breakout rooms” within the video proceeding, it is important to ascertain what the practice of the court is relative to these options. Many judges in this jurisdiction disable their ability to record or view such chat conversations. However, these matters present a fundamental question of judgment for each practitioner to assess the comfort level and trust under the circumstances and to provide each client with well-informed advice on when, where, and how to communicate during a remote proceeding.

As this article hopefully made clear, while the challenges of remote litigation are many, so are the opportunities. The beating heart of family law litigation is our mandate to represent our clients interests and to be their advocate during one of the most challenging times in their lives. We do that now during one of the most challenging times in our society.

While our charge remains the same, we can and should view this new way of litigating not with fear but with expectation.

Now, in many ways, we can truly navigate the profound intimacy of the material we work with in a closer, more personal, and even more authentic way. fa

BRENDAN HAMMER (bhammer@sdflaw.

com) is a partner with Schiller DuCanto & Fleck LLP in Chicago, Illinois, who concentrates his practice on the litigation of sophisticated family

law matters. Since 2019, he has served on the faculty of the National Family Law Trial Institute.

He is a frequent speaker and author on crossexamination, evidence, the performance aspects of litigation, trial techniques, and oral argument.