12 minute read
Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom
by Jim Gill
As early as May, the ABA Journal was raising the idea of virtual trials becoming a part of the “New Normal,” an oftused phrase to indicate life moving forward in the aftermath of the global COVID-19 pandemic. Now, three months later, virtual hearings and trials are becoming a regular occurrence, and as they do, challenges arise with them.
This week’s eDiscovery Blues cartoon tries to capture a few of those challenges with our usual combination of levity and insight; in particular, the struggle of an attorney being able to gauge the reactions of various parties while presenting an exhibit on screen. Also, it was hard to pass up the chance to show someone taking advantage of professional attire for the camera, while still rocking shorts and fuzzy slippers off screen.
As most of us become accustomed to video conferencing and remote work, a few things start to become apparent as being necessary.
Second Monitor:
When you move from a real life setting to video, your brain might be expecting the outcome of a multi-camera television production, but the reality ends up something like today’s cartoon. But with Zoom calls, you actually do have multiple camera views to work with. This is where having, at minimum, a second monitor in order to optimize presenting as well as organizing participant and speaker views is crucial.
Backgrounds, Dress Codes, Lighting and Audio:
In the recent congressional hearings with the leaders of Google, Facebook, Amazon, and Apple, one thing that came out of that was an analysis of the speakers’ video presences (there was a great write up about it in the NY Times).
Keeping that in mind, here are some things to consider:
• Attendees should keep their background simple and neat (backgrounds such as a beach landscape or a galaxy are inappropriate for the courtroom).
• As dress codes are still required, attire needs to be professional. At least follow the “Zoom mullet” approach—business on the top, party on the bottom.
• Also consider staying away from striped patterns in clothing. In a recent hearing, one participant was constantly closing his eyes, because another participant’s striped blouse was making him slightly nauseous as the pattern was visually vibrating.
• Good lighting is also very important. Avoid being backlit. Also avoid dark spaces and shadows, which can add an unintentional, somber mood. Ring lights are more popular than ever and for good reason.
• If you have to choose between good audio or good video, choose good audio. Investing in a quality mic can have a huge impact.
Opportunities and Challenges for Virtual Trials and Hearings
To get more insight into the current situation, I reached out to Alicia Aquino, who is a Trial Presentation Specialist and Litigation Consultant, for her take.
“Online trials are such a controversial topic; however, we see it CAN be done. Whether you’re in-person or online, organization and preparation are the keys to a seamless trial.”
She goes on to add a few of the challenges she’s currently seeing. “We are finding that access to technology may be an issue for some states and counties. In an ideal situation, jurors would use dual monitors during trial. As with an in-person trial, the cost of trial equipment is shared between parties, ensuring all jurors have an adequate setup may be the burden of the parties in the future.
“Another challenge with online trials is the internet speed varies from home to home, and jurors and parties are being dropped, causing delay. A possible solution may be asking jurors to participate at a public setting (i.e. library or government building) which can accommodate for safe social distancing.
“There is a high level of importance for a technical or ‘IT bailiff’ during an online hearing or trial to assist with the coordination of jurors, breakout rooms, and any other tech issues. This person is trained by the court to handle the back end of the platform and logistics. Some courts face an issue with the budget of having a full-time person assist with technology.
“Court reporters are being tasked with pulling up exhibits in a deposition; however, having an experienced trial tech will help streamline this process. Let the attorney handle the legal arguments while the tech handles the software and evidence.”
For further insight on how to better prepare for virtual courtroom presentation, I turned to Janelle Vindiola, Senior Project Manager for the Ipro Trial Services Team.
1.Practice, Practice, Practice
Take time for incorporating multiple practice sessions within your own legal team, so they can learn what to expect when presenting visual evidence in a remote environment. Practice sessions can help determine internet connectivity between parties (including witnesses) to allow time for upgrading equipment if needed.
And, as the court is usually the web host, allow time for a practice session between court and counsel to understand the court’s expectations and requirements, as well as learning the workflows between all parties.
2.Organization of Exhibits is Key to a Smooth
Presentation
If it is not already part of the process, it is suggested for the legal team to share a daily outline of exhibits to be presented. Because the trial tech does not have the convenience of sitting next to counsel, an outline will help the tech easily follow the counsel’s direction of strategy and be on queue to present.
Make sure to have an alternate file sharing application to support distribution, since Zoom has a file size limitation of 512MB. Also, courts are known to disable the chat and breakout rooms in Zoom, so the file sharing function may not even be available.
It is crucial to make sure all parties are on the same application platforms to easily follow group communications and data transfers. For trial teams (including trial techs), they will need to confirm alternate communications and have their own private cloud share as well.
3.Security is Important
Make rooms private where possible and assign someone to vet participants as they enter the discussion. Zoom has a “waiting room” where people must go before being allowed in as means to prevent “Zoom bombing.”
Someone will need to monitor that area for attendees if the proceedings are open to the public.
As web hosting may not be 100% secured, review and understand the security policies of your web application and best workflows. Zoom is constantly updating their security features; make sure everyone has the latest build.
Conclusion
As Alicia Aquino puts it, “The COVID-19 pandemic has created an opportunity for the legal industry to embrace technology and move cases through a virtual space. Although online jury trials are not ideal for long term, it is a viable option until we can all safely enter the same courtroom together. Although most courts are already familiar with Zoom for online hearings, there is an opportunity for a platform to be customized specifically to our industry and online courts.”
While there are certainly other challenges that will continue coming up, a little planning, preparation, and communication can go a long way. Things have definitely changed in the past few months, but it’s exciting to see how our industry is leveraging technology to keep the justice system moving forward. n
Jim Gill is the Content Chief at IPro Tech, LLC. Learn more at www.iprotech.com.
Lawyers, Develop New Business by Selling Yourself One Hour of Your Time Every Day
by Jay Harrington
(Excerpted from Jay Harrington’s new book, The Productivity Pivot)
One of the many consequences of the COVID-19 crisis is that traditional approaches to new business development in the legal industry have been upended. Many lawyers are still working from home. There are no more lunch meetings. Events and other in-person networking opportunities are nonexistent for the foreseeable future. Given the economic downturn, demand for most legal services is down, so new business opportunities are harder to come by. Accordingly, it’s more important than ever for lawyers to be disciplined and focused on business development, but discipline and focus are hard to deploy these days.
Even pre-COVID-19, many lawyers struggled to prioritize business development. The 24-hour, ondemand, always-on work culture of the legal industry saps lawyers of the willpower and energy necessary to remain focused on the task-at-hand for more than mere moments. These circumstances make it difficult to keep up with client work. They make it seem nearly impossible to focus on important but not necessarily urgent issues like professional and business development.
That’s a big problem, because professional and business development are the very things that allow lawyers to grow and thrive over the arc of a long legal career. Indeed, to succeed over the long-term, a lawyer must continually increase knowledge, improve skills, and build and grow relationships that will create new business opportunities. Failing to do so will result in getting left behind.
“But I Don’t Have the Time”
In my coaching practice, when I challenge lawyers to devote more effort toward business development, the response I hear most frequently is some variation of “I simply can’t find the time.” When lawyers respond this way, it’s because they’re hung up on the limiting belief that their highest contribution is focusing, often to the exclusion of all else, on their clients’ priorities—and billing lots of hours in the process.
You must ruthlessly prioritize the time necessary to focus on building a practice
When you operate on the belief that your own priorities—in this case, building a legal practice—must be relegated to the bottom of your to-do list, you’ll never “find” the time for business development. We all have the same number of hours to work with. Instead, you must ruthlessly prioritize the time necessary to focus on building a practice, with the understanding that it’s the most valuable investment you can make in your most important client: yourself.
Sell Yourself One Hour of Your Time Every Day
Research suggests that autonomy—the feeling that you are in control of your circumstances—is the most important contributor to career satisfaction. Lawyers who desire more autonomy will likely never get it if they’re dependent on others for billable hours. With clients of their own, a lawyer will make more money, have more options, and be able to exercise more control over their time.
Accordingly, while building a practice requires hard work, it’s an investment that has a big payoff, both in terms of financial rewards and personal well-being. But none of those benefits will accrue if you’re not consistently engaging in the activities required to develop new business. You must prioritize the time necessary to build a practice.
In my new book, The Productivity Pivot, I discuss the importance of spending one hour every day focused on business development. It’s a methodology adopted from the experience of Charlie Munger, who co-founded the law firm Munger, Tolles & Olson LLP, and later became a billionaire businessman as Warren Buffett’s partner in Berkshire Hathaway.
After graduating from Harvard Law School, Charlie Munger moved to California with his family and began practicing law as an associate at a law firm. Early in his legal career, Charlie came to an important realization that would help set him on a path toward massive success—as a lawyer and then as an investor. He recognized that he was spending all of his time working on behalf of his clients. As a result, he was doing little to serve the person he came to realize was his most important client: himself.
For Munger, the realization that he was his own most important client led him to adopt a daily practice as a young lawyer that became critical to his long-term success. He began “selling” himself the most important hour of his day—every day, first thing in the morning— and he used the time to work on personal and professional development. He wasn’t satisfied with his circumstances, so he decided to work for himself—one hour every day— to improve them.
In an interview he gave for his authorized biography, The Snowball: Warren Buffett and the Business of Life, Buffett recounts Munger’s approach: “Charlie, as a very young lawyer, was probably getting $20 an hour. He thought to himself, ‘Who’s my most valuable client?’ And he decided it was himself. So he decided to sell himself an hour each day. He did it early in the morning, working on these construction projects and real estate deals. Everybody should do this, be the client, and then work for other people, too, and sell yourself an hour a day.”
Most lawyers think the path to success lies in devoting as much time as possible to working for paying clients. However, as Munger learned and Buffett observed, the best investment you’ll ever make is selling yourself one hour of your time every day.
Don’t Let This Year Slip By
If you find the idea of carving out an hour every day to engage in business development activities unrealistic, you’re not alone. Despite the fact that one hour constitutes merely ten percent of most lawyers’ time each workday, they view an hour-per-day approach as unsustainable. What’s unsustainable, however, is the sporadic, frenetic alternative. You won’t build a practice if business development is only something you focus on when it becomes an urgent priority.
Chances are, you set some big business development goals for yourself at the beginning of 2020. Perhaps they seemed so big that you never got started working toward achieving them. Even if you did get started, the COVID-19 crisis may have thrown you off-track. Today, with less than four months left in the year, is the perfect time to revisit those goals.
Make a commitment. Develop a plan. Block time on your calendar for business development. Start selling yourself one hour every day. n
Jay Harrington is the owner of Harrington Communications, a leading digital marketing agency for law, consulting, and accounting firms. He specializes in helping law firms build engaging websites and digital marketing strategies through creative design and storytelling. Jay is author of three books, The Productivity Pivot, The Essential Associate, and One of a Kind. He hosts the podcast The Thought Leadership Project. Jay is a graduate of the University of Michigan Law School, and previously he was a commercial litigator and corporate bankruptcy attorney at Skadden Arps and Foley & Lardner.
