Effective Advocacy in a “Virtual” World
by Hon. Hélène Kazanjian
Voice of the Judiciary
We find ourselves during these difficult times trying to operate court business without parties actually coming to court. This is likely the “new normal.” In the short term, while we have begun to open courthouses for some in-person business, the court still encourages virtual hearings for most matters. In the longer term, it is possible that we will continue to handle some court business virtually for quite some time, if not forever.
Courts throughout the Commonwealth have been conducting virtual hearings for several months. It has unquestionably been an adjustment for everyone. Lawyers and judges have had to be flexible and patient as we have grappled with video and audio problems. Many have had to learn how to use virtual conferencing programs such as Zoom. We most certainly have had to keep our sense of humor as the occasional cat, dog, or young child makes a fleeting appearance at a hearing.
In light of these challenges and the limitations of the technology, how can lawyers most effectively advocate for their clients in a virtual environment?
First, it is important that lawyers understand how hearings are being conducted at the courthouses. The short answer is that it differs throughout the Commonwealth because technological capabilities vary. Despite these differences, in all instances, hearings have to be officially recorded, which generally requires the presence of a clerk in the courtroom. Judges will either be physically present in the courtroom or joining the hearing virtually. In some courtrooms, the clerk is able to connect the in-court For the Record (“FTR”) recording system to the virtual platform. Where that technology is not available, FTR will record the sound in the courtroom, which will ordinarily come out of small computer speakers built in or connected to the judge’s or clerk’s laptop.
With this backdrop, here are some suggestions to enhance your ability as lawyers to effectively advocate during a virtual hearing:
- Technology, technology, technology: First and foremost, make sure you have working technology. Minimally you need a computer or tablet with a camera, microphone, and speakers. You also need fast and reliable Wi-Fi. It is not ideal to be calling into a hearing from your cell phone. Cell phone callers often cannot join by video or cannot be heard well enough. You also may not be able to see all of the participants on your phone.
- Settings: Once you sign into a hearing, make sure the correct microphone is selected on your device. For example, if you are using an external webcam, you have to select the webcam as your operating microphone. The audio settings on your microphone and speakers must be loud enough. In Zoom, there are microphone and audio settings within the Zoom program. That means that in addition to checking the settings on your device, you need to check the program’s audio settings.
- Virtual workspace: Make sure you have a workspace that is conducive to a virtual hearing; that is, a place that allows you to participate without distraction. Trying to join a hearing from a cell phone in your car or from a computer in a room where there is other activity is not effective. Look directly at your camera and speak loudly into the microphone. Make sure your background, whether it is real or virtual, is presentable. Likewise, if you use a pin photo, which is an image that appears on your account when you shut down your video feed, make sure it is court appropriate. We know that many of you are juggling a lot. You may be working at home with other family members present who need your attention. That being said, do your best to set aside the scheduled time to focus on the hearing.
- Practice: Practice before you appear for your first virtual hearing. Find out in advance if your equipment and Wi-Fi work. Learn how to sign in with both video and audio, and how to adjust the microphone and speaker settings. Because the sound is sometimes better when the parties who are not speaking are muted, make sure you know how to mute and unmute yourself quickly.
- Identify yourself: So the record is clear, you should identify yourself each time you speak during the hearing, unless the court addresses you by name.
- Documents: If you have documents, pleadings, photographs or other items that you would like to use or “hand” to the judge during the hearing, or if you are planning to offer exhibits into evidence, make sure to get them to the clerk and the other participants in advance. Check with the clerk several days before the hearing about how he or she will accept these items (e.g. email, e-file, mail). Screen sharing can be an effective way to display documents during a hearing. Attorneys should check with the clerk in advance to make sure the host (the judge and/or clerk) is comfortable with that aspect of the technology.
- Other participants: In criminal cases, defendants will be present, or virtually present, unless their presence has been waived. Victims, witnesses, clients in civil cases, and members of the public should also be able to attend proceedings virtually, and, in some instances, give testimony. It is advisable to check with the clerk in advance if others want to attend a hearing. Make sure the individuals wanting to attend have the required technology to sign into the virtual call. If you are going to be questioning a witness about documents, pleadings, photographs, or other items, make sure the witness and all parties have copies of those items in advance. Speak to your client and/or witnesses before the hearing about how they should conduct themselves during the hearing so as to not distract from your arguments. It is not helpful to your case if your clients are rolling their eyes or shaking their heads during the hearing.
- Breakout rooms: If you and your client are in different locations and you need to speak privately during the hearing, if the court has the capacity you can ask the judge to send you to a virtual breakout room, where you can have a private/unrecorded conversation. This also can be done when multiple lawyers representing a single party or lawyers of different parties want to consult privately during a hearing. Alternatively, parties can mute themselves and briefly communicate with each other off-line.
- Demeanor: Conduct yourself in the hearing just as you would if you were in court. Address the judge not the other parties. The usual back and forth is not as easy so be prepared with a short presentation. At the same time, there is sometimes a sound delay, so be aware if the judge is trying to ask you a question. Finally, wear court appropriate attire.
The sudden switch to virtual hearings has required patience and a touch of ingenuity. In the end, virtual hearings can only work if we all accept and adjust to this new way of conducting court business, and if we commit to taking the necessary steps, including technology upgrades and individual training.
Judge Hélène Kazanjian has served as an Associate Justice of the Superior Court since 2016. Previously she served as the Chief of the Trial Division at the Massachusetts Attorney General’s Office, and as an Assistant United States Attorney in Washington, D.C. and Maine.