Lawyers would do well to use Zoom backgrounds, check their audio, and avoid talking over each other in virtual court proceedings precipitated by the pandemic, state and federal judges say.
Courts across the U.S. have adopted video to keep their dockets moving while in-court operations were in limbo. In some cases, the virtual venues have worked so well, courts plan on using them long after the virus is gone. But remote proceedings require some getting used to.
What follows are five things federal and state court judges say lawyers must know to avoid mistakes and improve their presentation.
1. Look the Part
“This is a court proceeding,” said Chief Justice of the Massachusetts Trial Court Paula Carey. So when lawyers appear on zoom, they should “dress accordingly.”
Some lawyers who haven’t dressed the part have had their hearings rescheduled by judges.
“This is serious stuff, and you need to ensure that the dignity of a court proceeding maintains throughout this virtual environment that we’re living in,” Carey said.
Dressing properly means wearing professional attire from head to toe, not just head to waist. You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts, Illinois Supreme Court Chief Justice Anne Burke said.
2. Find an Appropriate Space
Southern District of Texas Chief Judge Lee Rosenthal said aside from the basics of making sure they have the right technology, lawyers should make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there.
If lawyers are operating out of their kitchen or bedroom, she also suggested putting in a professional looking—boring—virtual background.
Many courts have virtual backgrounds that can place a lawyer inside the courtroom, which can help maintain a sense of formality. If a lawyer dares not to use a virtual background, they should remove any inappropriate books or magazines, said Chief Justice of the Arkansas Supreme Court John Dan Kemp.
“They key—besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,” Rosenthal said.
Lighting and camera positioning can also make a difference. “It’s not hard,” said Nathan Hecht, Texas Supreme Court chief justice. Lawyers can find courses online that explain camera framing and angling.
3. Use Virtual Context Clues
The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said. In a live argument, a judge’s body language can provide cues, which aren’t visible in a virtual environment, Rakoff said.
“In video, it’s not the same. Your judge is looking at the screen, he’s not looking at you,” he said. Tuning in to a judge’s tone is important for lawyers “because that’s the main remaining clue as to whether they’re scoring or not,” Rakoff said.
Eastern District of California Chief Judge Kimberly Mueller said lawyers should also plan on being concise.
“It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up,” Mueller said. The virtual platform can make lawyers more comfortable and lawyers can tend to go a little longer than they might have in person, she said.
4. Be Aware of the Record
Lawyers should make sure their audio feed is solid before they present, said Michigan Supreme Court Chief Justice Bridget Mary McCormack.
Recently, she heard an oral argument where a lawyer’s audio “sounded like he was in a wind tunnel,” and everyone on the video call wanted to hold their ears.
“Be aware that you are still creating a record,” Mueller said.
Court reporters are trained to interrupt if they don’t hear something, but lawyers still need to be mindful of things like talking over each other on a virtual platform, she said. “The main thing they can do is wait to be called on by the judge,” Mueller said.
5. Practice and Prepare
Lawyers should prepare themselves for venues they’re not familiar with, said Chief Judge William Johnson of the District New Mexico.
There’s a trend nationwide that predates the pandemic of lawyers practicing in states without being licensed in that state, Johnson said. Because customs can differ from court to court, Johnson said he’d like to see lawyers familiarizing themselves with the particular district in which they’re presenting.
“In videoconferencing, if you’re not careful, the standards of the profession can drop and it can get too informal and too lax,” Johnson said, though he noted it’s been a great way to keep civil and criminal cases moving.
Preparing a presentation ahead of time is still crucial, because lawyers can’t just hand court staff evidence anymore, said Corey Steele, Nebraska state court administrator.
Lawyers should also decide ahead of time if they’ll sit or stand, if they’ll use a podium or go without, Hecht said. “It’s really important to plan that all out ahead of time,” so a lawyer feels, and looks, prepared.