April 16, 2020
By: Elisa D’Amico
We are living in strange times, on lockdown at our homes because of the novel coronavirus pandemic. But lawyers have set up home offices and we continue to serve our clients and our community. Thanks to the strong leadership of the Honorable Bertila Soto, the Eleventh Judicial Circuit has gone virtual and is up and running. Non-emergency hearings are taking place on the Zoom platform for the first time. Now, more than ever, litigators need to do more than prepare substantively: they need to become facile with technology and able to present persuasive arguments before the court, while sitting at home.
As an internet/tech/social media lawyer, I’m not frightened by the virtual world. In my opinion, one silver lining to all of this is that we are all learning and embracing new technologies, advancing the practice of law and access to justice. I know some people don’t have the same kind of love for technology as I do. So, in an effort to learn more about how virtual courtrooms work and how lawyers can set themselves up for success, I spent some time speaking to some judges and even participated in a mock hearing to test the technology. Here’s what I learned, which I think is worth sharing. You may not agree with everything, but my guess is that you will agree with at least something:
· Make sure to check the court website to become familiar with the administrative orders (https://www.jud11.flcourts.org/coronavirus/AO), and make sure you are quoting the correct one.
· You need a webcam and a microphone, which most laptops have. You can also use Zoom on your smartphone. You don’t need to create an account in order to attend a hearing or a meeting, but you’ll want to download the Zoom app on your phone and/or visit zoom.us on your laptop or desktop.
· If you wish to create your own account, a basic account is free. I recommend doing this so you can spend some time getting familiar with the platform, but it’s not a requirement.
· If you want a more detailed guide, read up here.
WILL THE JUDGE BE ON THE BENCH?
· Virtually, yes. Judges will be dressed in their robes, and though they’ll be presiding from home, they’ll appear in front of a standardized backdrop with the seal of the state of Florida, our state flag, and the American flag.
· If you’re still curious, here is an article (with video) of Miami’s first Zoom hearing in criminal court, before Judge de la O.
DRESS FOR SUCCESS
· Even though you will be at home, you will still be appearing in court. You should dress in courtroom-appropriate attire. If you’re sitting at your desk for the hearing, whether you remain in your slippers is on you. And, this should not have to be said, but please wear a shirt.
· Once you connect to the hearing, you most likely will be in the virtual “waiting room.” Wait here until the judge is ready, at which time she or he will let you into the virtual courtroom. The judge may also set up a "breakout room" for you to wait along with opposing counsel.
· Before attending a hearing (or any meeting for that matter), make sure you test your audio and video. The last thing you want is to get in front of the judge only to find out your microphone doesn’t work or that nobody can see you. If you don’t see the prompt to test when you first log in to Zoom, go into Settings and you can do it from there. You can play a test sound to make sure you can hear it, and speak to make sure your mic is working.
· You should consider whether using a headset provides you better sound quality. This will depend on what hardware you’re working with. Shut down any programs that may interfere with your hearing, and try as best you can to keep background noise to a minimum.
· When you check your video, take a look at what you see in the frame. No judge wants to see a pile of laundry on top of your bed. (In fact, no judge wants to see your bed--try a different room). Think about lighting (which should be behind the webcam, not behind you). If you don’t trust me, trust Tom Ford. And pay attention to your backdrop. It may be worthwhile to rearrange a few books or plants to make your workspace look more professional. Another option is to use Zoom’s virtual background feature, which allows you to upload a photo and use that as your backdrop. So, if your home office isn’t all you want it to be, you may want to test out some other office backdrops. (West Elm has some for free here.) If you use this virtual background feature, however, make sure that you have an appropriate background; the one you used for last night’s happy hour is not the appropriate background.
UNMUTED IS THE NEW REPLY ALL
· Mute your line and be ready to unmute if asked. When you connect to the platform, realize that you will not be the only person on the line and it is very likely that your hearing is not the only one on the calendar. If you aren’t on mute, even something that seems quiet to you--like typing on a laptop--can be extremely loud and distracting to the judge, staff, and other lawyers.
· Most judges will understand that we are all working from home, many of us with young children. While complete silence is not an option, make an effort to do the best you can.
WAIT YOUR TURN BUT PAY ATTENTION · If yours isn’t the first hearing up, the judge may let you know that you are welcome to leave the screen, but that you should listen and pay attention so that you are ready for your hearing when you are called.
· Once the hearing begins, the judge may ask you to state your appearance orally or may ask you to raise your hand to confirm you are on the line. Be prepared for either. If you are asked to state an oral appearance, make sure to unmute.
EVIDENCE, EXHIBITS, & SCREEN-SHARING
· Virtual hearings may still require the presentation of documentary evidence, so you should stay abreast of the administrative orders being issued, particularly as to the presentation of evidence at hearings. (Administrative Memorandum No. 20-A.) Plan to file your documentary evidence, along with an index, at least 5 business days in advance of your hearing.
· Spend some time thinking about how you want to present that evidence, including checking to see what your judge’s preferences are.
· If you are presenting evidence by referring to the docket number (because you filed your exhibits in advance), remember that this may require the judge to click over to another window to view the evidence in courtMAP instead of viewing the Zoom window. Some judges have dual monitors but many are operating on one monitor without the ability to split screens. For that reason (and also because it’s incredibly easy), I recommend learning how to use Zoom’s screen-sharing function, which is very simple.
· To use screen sharing, once connected, move your cursor to the bottom of your screen and you’ll see a pop-up, which includes “Share.” If you click on that green button, you’ll have the option to share your entire monitor or just one open window/program (i.e., the entirety of what you see on your screen or just a single PDF/photograph that you have open). When you share your screen, you’ll see whatever you are sharing as a large window, and you’ll see smaller windows for each of the participants--this will allow you to put eyes on the document you are referring to, but you’ll still be able to keep your eyes on the judge and opposing counsel. To end screen sharing, click on the red button on top of the screen (you’ll only see this while you are sharing your screen). You should consider practicing this before your hearing so you don’t run into any technical difficulties.
DISCONNECT; I REPEAT, DISCONNECT
· Remember that you must completely disconnect from Zoom when you are finished. Do not skip this step. This is even more critical if you connect from a smartphone: minimizing the window does not shut the program down. Trust me, you don’t want to have your video and mic still connected after your hearing ends. Make sure to disconnect and double (or even triple) check.
A VIEW FROM THE BENCH
I connected with some of the wonderful judges from the Eleventh Judicial Circuit to see what tips they have for practicing lawyers who appear before them in virtual hearings. Here’s what they had to say:
o Take a look at your judge’s website to see if she or he has any special procedures or dial-in codes for Zoom hearings.
o There is a new administrative memorandum that concerns evidentiary hearings in civil cases; make sure you refer to it when you are setting an evidentiary hearing via Zoom.
o Call in early.
o Be patient. The judicial assistants and bailiffs are new to Zoom and are learning just like you are.
o Make sure your mic is muted when you are not speaking and eliminate all background noise.
o Confirm you have a strong internet connection.
o Sometimes you will have a bad connection and will have to try to rejoin the Zoom meeting.
o Be ready with a backup dial-in phone in case of technological failure.
o If your judge has a breakout room for motion calendar, you will likely be in there with opposing counsel 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.
o Resist the urge to use the waiting room to chat with the other people on the Zoom. The judge may be waiting and listening.
o When you connect, make sure that you are ready to go.
o Look at your webcam when you are talking, not at your screen.
o Repeat critical points or testimony and ask if everyone heard.
o Good lighting is important.
o Don’t sit too close from the camera; don’t sit too far away from the camera.