Up until March of this year, most lawyers who had an occasion to practice in either Federal, State, or Administrative court represented their clients in live court before judges themselves. In the recent past we have seen the advent of the use of the telephone for hearings and in some cases video fees for administrative hearings for such cases as workers’ compensation.
At the onslaught of the COVID-19 virus and its dramatic effects upon, not only this country but the world, the court systems of Florida were effectively shuttered by both necessity and administrative order by the Chief Justice of the Florida Supreme Court down to the Chief Judge for individual circuits.
It is then that we first began to hear about the concept of conducting court proceedings utilizing a virtual platform. At least within the circuit, I practice in, the Twelfth Judicial Circuit, In and For Sarasota, Manatee, and DeSoto counties that virtual platform was Zoom. I have since discovered other circuits are using other platforms such as Teams.
Chief Justice Canady’s administrative order specifies that certain matters are appropriate for the use of virtual technology, including both evidentiary hearings and non-jury trials. I had occasioned this summer to conduct a five-day virtual bench trial with both document and live testimony. This article is to provide some guidance for attorneys who may be called upon to conduct court proceedings utilizing virtual technology.
If your office is like mine, it is a busy place intersecting clients, cases, telephones, emails, documents, files and people. Although my office computer set up was an acceptable place to conduct motion practice hearings, I found it an unsuitable place to conduct an evidentiary hearing or non-jury trial. With the support of our client, we hired an Information Technology (IT) professional to set up the necessary technology we would need to conduct virtual court trials in one of the conference rooms in our building.
The idea was to replicate a true courtroom experience where I could be focused on the trial and away from the daily activity of my office. I utilized the latest technology that included intel processors, dual 27-inch monitors, 4K ultra high definition webcams, solid-state hard drives, and quality speakers powered by a network with upload speeds of 10 Mbps.
Although we had the top of the line equipment—glitches did occur. Our IT professional was able to quickly resolve these issues with minimal interruption to the trial proceedings. In the event you are in a large firm you may well be able to use your internal IT department to assist you with these services. Otherwise, I strongly encourage the hiring of an outside IT professional.
I strongly encourage practitioners to utilize the virtual platform that you will be required to use by the court for virtual court trials, whether that be Zoom, Team, or something else. Most have limitations on the number of minutes you can be engaged with their services without paying for a subscription plan. Prior to the trial conduct as many meetings and preparation sessions as possible, as well as hearings in other cases, utilizing the virtual platform to become familiar with everything from the basics of logging on to the more complicated use of screen share.
We did not alter our standard preparation, which is done in advance of trials. Those included the preparation of exhibit books, trial notebooks, etc. Because of the COVID-19 virus and concerns by both clients and witnesses we performed most of our witness preparation utilizing virtual technology. This is a great opportunity to practice multiple times with witnesses and documents so that the virtual platform becomes second nature.
The first thing that struck me about virtual court trials is not being in the same room with clients, lawyers, and the judge. You may be in a virtual room with them, but you are not physically present with them. This removes the ability for quick interaction with co-counsel or even opposing counsel to deal with issues that may arise at trial. It further removes the emotion that is also a driving factor in direct and cross-examinations.
The virtual platform makes it difficult to find a rhythm with witnesses, whether they be under direct or cross. Accept these limitations and press forward as best as possible with the plans developed with prosecution or defense of your case. The virtual technology will also require you to be more efficient in how you deal with witness testimony and exhibits. I spent time looking carefully at the case, cutting out extraneous or extra documents which were not essential to our case.
The virtual platform will also require greater cooperation with your opposing counsel toward the stipulation of both facts and evidence. I found that standard objections, such as authentication may be lost as there is a greater emphasis on counsel cooperation to avoid unnecessary delays on the virtual platform.
In conclusion, despite my initial trepidations about utilizing the virtual platform, including concerns about due process, we overcame some of those concerns by replicating the courtroom experience in our office, having our client present with us as opposed to being on a separate video feed and establishing a dedicated witness testimony room in the office separate from the trial room so that we could control the timing and availability of witnesses.
Not all circuits and jurisdictions are mandating the use of virtual technology, particularly to conduct bench trials but if your circuit is doing so I can assure you from experience that it is possible to present even a complicated case to the trier of fact.