Legal Loop: Zoom court hearing tips from the Boston Bar Association

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It’s the end of July 2020, and we’re months into the COVID-19 crisis with no end in sight. As surges occur across the country, working remotely has become commonplace for most members of the legal profession. Because of that, court appearances, hearings, and jury trials are also part of our newfound reality.

As lawyers increasingly appear in court proceedings via videoconferencing, concerns regarding this format have begun to crop up, ranging from proper attire and etiquette to ethical and confidentiality issues. Because it’s such a new method of interacting for the vast majority of lawyers and judges, it’s an experiment in progress and people have been making it up as they go along.

Fortunately, the experiment is well underway, and as a result, protocols are being established to help lawyers engage more successfully in this format. Most recently, the Boston Bar Association provided four virtual hearing guides that include lots of great advice for lawyers seeking to improve their videoconferencing skills. (Online: https://tinyurl.com/MAZoomTips).

Some of the tips revolved around preparation. For example, lawyers were advised to ensure full familiarity with the videoconferencing platform being used by the court. Here some of the best tips relating to preparing for an appearance:

• Take online tutorials about Zoom so you become comfortable with all the technological capabilities Zoom has to offer.
• Call into the hearing a few minutes prior to the designated time to ensure you will have time to resolve technical issues.
• Make sure your necessary technology is ready to go without incident (e.g. internet is fully functioning, Zoom app is updated, cell phone charged).
• If you are participating in a Zoom hearing, carefully set your camera so that it captures a good view of your face and upper torso. You don’t want the camera to cut off part of your face, for instance.
• Ensure that you are in a quiet room away from potentially distracting noise.
• Be aware of your background. Make sure that you are not in front of a window, which will make you backlit and hard to see. If your background is distracting, consider using a neutral digital background on Zoom. To practice you can start a new meeting in the Zoom application, and it will show, without other participants, how you will look in an actual meeting.

Videoconferencing etiquette is often a foreign concept to first-time users. To that end, the guides also include a variety of etiquette recommendations including the following:

• Treat the hearing as if you were present in the judge’s courtroom.
• At the start of any virtual hearing, make sure all attorneys and parties state on the record that they are alone and that no third parties are within earshot of the hearing proceedings. If a third party must be present for the hearing, identify that individual and the reasons why that individual must be present for the hearing.
• Defer to the judge as to his or her preference on who should speak at a given time.
• If a motion is being heard, expect the moving party to speak first and the responding/opposing party to speak second.
• Do not talk over one another.
• Mute yourself when you are not speaking.

Finally, there was very useful advice provided regarding the practicalities of appearing via videoconference while maintaining client confidentiality and ensuring an open line of communication between attorneys and clients throughout the proceeding. Some of the most useful tips included:

• Be sure to warn all witnesses that once they are on the call/meeting, anything they say can be heard by the clerk and anyone else present and it may even be recorded on the record. This is true even if the judge has not joined the hearing.
• All participants should also be aware that if they are participating in a Zoom hearing, they can be seen even if they aren’t speaking so they should be careful to behave in the same way they would if they were in court.
• The best practice is for you and your client to be in the same room for the virtual hearing, following safety guidelines. However, if you and your client are appearing in separate locations, consider setting up a “back channel” for in-hearing communications such as email, text message, Slack, Google Chat.
• Be careful with your use of Zoom chat and make sure if you do use Zoom chat that you are directing your messages to the correct recipients.
• Remember that hearings are recorded. You and your client should not speak to any third parties during a hearing.

Those are just some of the highlights, and there’s even more to be found in each guide. So make sure to download them and give them a read. Of course, the courts that you appear in may have videoconferencing rules or customs specific to your region so keep an eye out for similar guides that are unique to the courts in your jurisdiction, as well.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].