remote advocacy in the age of social distancing · sensory components of remote advocacy • audio...
TRANSCRIPT
Remote Advocacy in the Age of
Social DistancingApril 1, 2020
Background
• Audience
– Attorneys and Courts (we’re in this together)
• Solutions
– Teleconference
– Videoconferencing
• Must depend on technology
– Participants will be connecting from home, not an enterprise IT environment
– Reliance on residential internet connections and mobile phones
– Things can and will go wrong
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Costs of Remote Advocacy
• Not in person = Loss of non-verbal communication
– Attorneys
• When the judge has a question
• When to stop talking…
– Judges
• When to jump in with a question
• How is the attorneys' credibility?
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Sensory Components of Remote Advocacy
• Audio
– Audio alone adequate for non-substantive
hearings (e.g, Rule 16)
– Conventional teleconference bridge
• Becoming more unreliable
• Consider calls at off-peak times (9:05
am)
• Visual
– Likely necessary for hearings of substance
(Markman, Summary Judgment, Appeal)
– But things get more complicated:
• Increased reliance on technology =
Increased complexity
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Video Hearings & Advocacy
• When do you need video?
– Show slide decks, like PowerPoint
– Show exhibits/demonstratives
• Other reasons for video?
– Perceive non-verbal, visual cues
• Judge’s facial expressions
• Attorneys’ facial expressions
• What to show?
– Just slides/documents? Faces too?
• Do the participants (including judge) have cameras?
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Video-Based Options
• Multiple options, for example:
– Microsoft Teams, Zoom, WebEx, GoToMeeting
– Appropriation in Coronavirus Aid, Relief and Economic Security (CARES) Act
• Flexible Presentation
– Participant's camera (wear court dress)
– Documents/Demonstratives
• If you have two screens, could share what’s showing on just one
• Typically can be as precise as only sharing a particular application or a window
• Ensure the selected solution is free for others to use, and easy to use
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Recommended Best Practices
• Examples:
• Provides presenter/host with
ability to share your screen or an
app (e.g. PowerPoint)
• Can simultaneously share your
camera
• Can pass role of presenter, e.g.
between Plaintiff and Defendant
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Best Practices: In Advance of the Hearing
• Send each participant access details the day before
– Allows everyone to download any needed software, and practice with it
• Court (Judge, law clerks, court reporter)
• Attorneys, and any Witnesses
• Reach agreement w/ opposing counsel re sending electronic copy of
slides + exhibits/demonstratives
– To court, a day (or 24 hours) before hearing
– To opposing counsel at the same time – or at least an hour before
• Why?
– Technology can fail
– “Send my slides and exhibits to o/c the day before? No way!”
» Q: is it worth risking delays/cancellations if court or O/C can’t download hearing
materials in time?
» Tip: can send larger sets of exhibits than you intend to use to avoid over-previewing
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Best Practices: Additional Tips
• To aid efficiency and ID’ing of visuals:
– Add cover page to each exhibit for easy identification
– Give them easily identifiable filenames, like “DX-1_Document_Name.pdf”
– Make sure every page is uniquely identifiable, by page # or Bates #
– Remember to include legible page #’s in slide decks
• By sending hearing materials day before & making ID’ing them easy,
you’ve prepared for “Plan B”
– If video drops out, you know the court and o/c have their own copies of slides/docs
– You know you can easily identify them
– Can now proceed with hearing without video, if needed
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Best Practices: Things to Do Unique to Remote Hearing
• Identify each slide or document prior to discussing it
– Really....
– Every time....
• If telephonic hearing (or video drops out or is out-of-sync), periodically
ask the Court if there are any questions
• Check to confirm everyone can hear and/or see everyone else
– When: at beginning and after recesses
• Make sure court reporter can hear everyone that will be speaking (judge +
attorneys)
• Ask Court reporter to chime in if they are having trouble hearing a speaker
– They’re only human!
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Best Practices: Things to Do Unique to Remote Hearing
• Remember, no sign-in sheet
– Before going on record, every single speaker should identify himself or herself
• Court (including law clerk(s), court reporter) and attorneys
– Court can act as emcee, cycling through all participants so participants aren’t confused
as to who they’re looking at on screen
• Attorneys: ID yourself each time you speak
– You’re just a talking head on a computer monitor, not seated at Plaintiff or Defendant
podium
• If you’re not speaking, keep your audio muted
– Chime in if you think a speaker may have forgotten to un-mute
• Consider designating a “hotline” individual, e.g. from your IT dep’t, to
help save the day
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Best Practices: Hearings With Witnesses/Exhibits
• Witness would attend via video (e.g. Zoom), just like other participants
– Like with others, send access info day before
– Exhibits would work as we already discussed – and be sent in advance
• Federal Rule of Civil Procedure 77
– Any act or proceeding beyond trial “may be done or conducted by a judge in chambers,
without the attendance of the clerk or other court official, and anywhere inside or outside
the district.”
– “But no hearing—other than ex parte—may be conducted outside the district unless all
affected parties consent.”
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Best Practices: Hearings With Witnesses/Exhibits
• If parties do not want witnesses present until it’s time to call them:
– Have witnesses sit on standby (at home, etc.)
– When time comes to “call them to the stand”:
• “Your Honor, may we take a brief recess to connect a witness, Mr./Ms. Doe?”
• [During recess]
– Call or message your witness, have them connect to audio + video
– Again confirm everyone (including court reporter) can hear all other speakers,
including Witness
• Back on record
– Swear in Witness
– Proceed
– When finished, judge can thank Witness and ask them to disconnect
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Best Practices: Assume the Tech Will Fail You
• Never forget!
• How to minimize failure/disruption to remote hearing?
– “Layer” the technology being used
– Don’t rely only on single platform
• For audio, recommend using Zoom’s “built-in” teleconference bridge (or “Call
me”) option as opposed to the built-in computer audio/VoIP option:
– Computer audio uses same communications path as video, and if overloaded
could lead to audio and/or video being garbled
– And if that path fails, both audio and video are gone
• Reach agreement re backup plan
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Best Practices: Practice With the Technology!
• Do not wait to practice with the technology
– Waiting to use tech for first time when hearing starts will likely lead to frustration and/or
embarrassment
– Courts and attorneys should practice holding their own video meetings well in advance
• May need to work with their respective IT departments
• Things to check when practicing with the tech:
– Is the audio clear?
– Adjust lighting ahead of time
– How to change presenters?
– How to share a screen? An app? A specific window?
– The mute button
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Best Practices: Practice With the Technology!
• Confirm whether need to upgrade, to avoid time cap when hosting
videoconference
– Zoom = free version provides 40 minutes depending on # of users
• To extent possible, establish internet connection using Ethernet cable
instead of Wi-Fi
• Can practice using “virtual backgrounds”
– Zoom provides stock ones
– Can upload your own
– Subject to minimum machine requirements
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Best Practices: We’re all in This Together!
• All of us (courts & attorneys) need to
appreciate that remote hearings are
imperfect
– Sound may drop out
– Video may drop out
– One person’s audio/video may drop out and
they’ll need to reconnect
• Be patient and work together
• Hearings from home means hearings
mixed with real life
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Thank You!
David [email protected]
Jackob [email protected]
Steven [email protected]
Susan [email protected]
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