TECHNOLOGY IN THE LAW PRACTICE
BY ERIC JOHNSON AND WADI MUHAISEN.
As courts deal with the social distancing requirements related to COVID-19, lawyers are increasingly required to conduct virtual court hearings. Now more than ever, litigators must do more than prepare substantively; they must become adept with Technology and be able to present persuasively before the court while sitting at home or in the office. As courts have resumed operations, most hearings have been conducted remotely and will continue that way in many judicial districts. This article offers recommendations for practitioners who participate in virtual hearings.
Colorado Courts and Remote Hearings
To comply with statewide and local stay-at-home orders, Colorado’s court system suspended most hearings and trials, and limited other operations, except for those deemed essential. Each jurisdiction has specifc administrative orders in place that govern court appearances. Many courts, including in the 2nd Judicial District, have implemented mandatory phone or video meetings through computer or mobile applications.
How Do Remote Courtrooms Work?
If a hearing is going to take place by Telephone conference call, the court will set the time and date for the hearing and notify the parties. The court establishes procedures for Telephonic hearings, so you should get to know the procedures for a particular division and read any court orders on the subject If necessary, contact the division clerk to ask for information about the process.
If a Telephonic hearing is conducted, either the court staff will ask for each participant’s phone number in advance and call everyone at the appointed time, or the court will use conference calling whereby parties and witnesses join the call using a dial-in number and PIN. For most signifcant or substantive hearings, voice-only is not usually sufficient; if you have a choice in how to participate, opt for video to maximize your persuasiveness.
Appearing by Videoconference
Before COVID-19, criminal courts in some Colorado counties sparingly conducted remote hearings in certain contexts (e.g., a defendant appearing by video from the detention facility). But everything changed in spring 2020 as courts moved to virtual courtrooms in response to the growing pandemic. In some jurisdictions, the process of getting virtual courtrooms ready for expanded use required a great deal of work to set up the Technology at the courthouse and in detention facilities, including installing adequate bandwidth and training staff.
Nearly a month after the first Colorado court orders restricting court access and operations, county chief judges further clarified how the courts would continue to operate during the pandemic. Judicial districts have expanded their capabilities to conduct hearings on the record in virtual courtrooms. At the discretion of the presiding judge, and depending on the availability of necessary support staff, parties can schedule matters to be conducted by telephone or by using an interactive audiovisual device such as a computer, tablet, or smart device. The presiding judge, who may appear by using an interactive audiovisual device, may also require, as allowed by law, participants to appear by using an interactive audiovisual device. The court may set and reschedule matters for hearings to be conducted via an interactive audiovisual device. When a case is scheduled in the virtual courtroom, a link is sent to all lawyers and others involved in the case. The virtual courtroom also allows defendants to appear in court and communicate with an attorney privately during hearings as one would in a regular courtroom setting. The attorneys and court staff can also communicate by private message within the virtual courtroom application.
Choosing the Right Hardware
To participate in virtual hearings, it is imperative that you have the right hardware setup. Just like wearing Thennis shoes to court sends a message about your respect for the court’s time and how serious you are about being an effective advocate for your client, so does being properly prepared for the technological challenges a virtual hearing presents. At a bare minimum, you will need a strong internet connection and a device with video and audio capabilities, such as a smartphone, tablet, laptop, or desktop. However, using your phone for video is not recommended if you want to project a professional look.
If your video lags, there may be several possible causes. First, you may need to upgrade your computer. Older computers may have inferior cameras and microphones, lack the memory (RAM) needed to process the video, and have old video cards not up to the demands of modern videoconferencing. Second, double-check the capabilities of your internet connection. You can check your internet speed for free at various websites, including Google’s internet speed-testing site.2
When you check your internet speed, you will be given two numbers: upload and download. Download speeds affect your ability to watch a Netflix movie or show, shop online, scroll through social media, view YouTube videos, stream music, and download documents from the web. Upload speeds are important for sending emails with large attachments, backing up data to online or cloud storage services, and working on live, cloud-hosted documents like Google Sheets or Docs. For videoconferencing, you will use both. How much depends on how many parties are in the video conference and what you will be doing (e.g., screen sharing). Generally, you will not need more than 10 Mbps download and 3 Mbps upload available to you.3
Keep in mind that everyone else on your network will “use up” some of what is available to you, so try to ensure no one starts downloading HD movies in the middle of your Court of Appeals argument. Finally, regardless of the quality of your computer or internet connection, you should shut down all programs except those that are essential to your video appearance; having numerous programs or browser windows open can affect computer performance.
Audio is just as important as video when it comes to making a good impression. Most computers have built-in mics; if you are only appear ing occasionally, this should suffice. However, if you are consistently in virtual hearings, mediations, or depositions, consider getting a dedicated USB microphone. Most built-in microphones are “pencil mics,” meaning they will only pick up when you are speaking directly to them and are only good for short range. For signifcant appearances or arguments, a quality external microphone is best. To avoid feedback or echoes, do not have multiple computers or phones connected to the same hearing in the same location. Separating your video (using a camera or computer) from your audio (using your phone) can improve audio presentation when done properly.
Once you have the right equipment in your office or home, the next area to consider is online meeting software. There are a lot of great options to choose from, but you will be required to use the platforms that the courts have chosen for appearances. Cisco Webex, Microsoft Theams, and Zoom are some platforms that Colorado courts are using.
Preparing for Virtual Hearings
It is prudent to log in early. Be patient. The judicial assistants and bailiffs are new to this and are learning just like you are. Make sure your mic is muted when you enter the meeting and at all times when you are not speaking. Eliminate all background noise, including sounds from any background applications. Silence your phone, and if necessary, change your notification settings to eliminate disruptive “dings” from incoming texts and emails.
If your virtual courtroom has messaging capability, you will be able to communicate with other counsel, the clerk, or your client while you wait for the judge to take your case. Use this time to talk about your case just as you would if you were in the hallway in the courthouse. Be very careful about not sending a private message to “everyone” in the messaging window, if the platform has one. Always take a look at your judge’s website or any orders issued to see if he or she has any special procedures or etiquette for virtual hearings. And if you have any confusion or doubts as to procedure, consider reaching out to the clerk. Adhering to the court’s preferences is as much an effective part of advocacy in a virtual setting as it is for in-person appearances.
Become familiar with the capabilities of any program you are using. Being able to fully use all of a platform’s features will make for better presentations and help your clients. If a court uses Cisco Webex, but you and co-counsel are more capable using another program, the judge may allow you to use your program of choice so long as the judge can control the proceeding, the proceeding remains “open to the public,” and the standards of due process are maintained. If you have supporting documents that you want the court to see, such as contracts, invoices, canceled checks, photographs, or other relevant documents, they should be submitted to the court and to the other parties well before the hearing.
You might also consider asking to allow the litigants (attorneys, clients, witnesses) to do a “dry run” by contacting the court’s judicial assistant.
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