As COVID-19 continues to impact our ability to gather in person, many industries are still creating entirely new protocols for conducting virtual business. Courtrooms are no different. Given that many depositions, hearings, and trials are now being held virtually, lawyers and other legal professionals have no choice but to use and understand the technologies intended for presenting information remotely.
Notwithstanding all this newness, some things remain the same. For example, if you’re going to present exhibits in a court of law, they still need to be organized, concise, understandable, truthful, and relevant. Your lack of sophistication with technology is no excuse for bad lawyering. With that said, here are our best practices for managing exhibits in a virtual courtroom.
Know the rules
Sometimes I fantasize that enough people read my blog posts that they will automatically know my first tip will always be “know the rules.” The fact is, you simply can’t go wrong if you take the time to find and digest all the rules that pertain to the court you’re practicing in. The same holds true when it comes to managing exhibits (and other tasks) in a virtual courtroom.
Fortunately, many courts have responded to the pandemic crisis by publishing new guidelines for practicing virtually. San Francisco County Superior Court, for instance, has published “Admonitions and Instructions” for the current state of affairs. I’d hate to be the lawyer who failed to follow those guidelines when appearing on behalf of a client. Take the time to look up the relevant rules well before your first virtual appearance in any court.
Know your technology
Now is not the time to be a Luddite. It doesn’t matter how old you are, how much you oppose technology, or how much you long to be back in an actual courtroom. We’re all stuck with this virtual world and we have to learn to play by its rules.
When it comes to presenting exhibits or just making a general appearance, please remember the cat-filter lawyer. If you haven’t seen the video yet, please take the time, click on the link, and vow to yourself that you’ll never become that guy.
Know your format
Ever since the pandemic started, “Zoom” has become a kind of short-hand for online gatherings. There’s no doubt that the platform is immensely popular and that it would behoove you to know how to present exhibits using Zoom.
Don’t rely too heavily on one online venue, however. Many courts are using WebEx for online hearings. Other courts are undoubtedly using other platforms. It doesn’t matter which platform your relevant courts are using, it matters that you know what they’re using and that you’re prepared to use them.
Be agreeable
The truth is, we’re all struggling to get through this moment in history. When it comes to presenting virtual exhibits, even in depositions, we’re often left doing things differently than we’ve ever done them before. You’ll do yourself (and your client) a big favor if you can reach some sort of agreement with opposing counsel with respect to how digital exhibits will be handled before you get to the deposition or the courtroom.
Don’t forget tangible exhibits
In many litigation practices, documents are the primary form of exhibit. Relatively speaking, those are easy to handle in a virtual courtroom. But what if you need to introduce an actual, tangible exhibit (e.g., the counterfeit “widget” that infringes your client’s patent)? In these cases, you’ll still need to file the physical exhibit with the court clerk. If that’s the case, don’t forget to take plenty of pictures of that exhibit that you can present to the court as part of your overall presentation. Also, you should become comfortable with presenting those photographs digitally and explaining how they support your theory of the case.
Rely on experts
You are not the first lawyer to present virtual exhibits. Other people have given this a lot of thought. Thus, please take the time to read the advice of experts on virtual exhibits before you even begin to make your own game plan.
Testing, testing
Even if you heed all of the rules above, your virtual hearing could turn into a nightmare if you don’t test all of your technology prior to the date of the hearing. Let’s face it, lawyers with the best of intentions still run into technical difficulties. Presenting virtual evidence is just like any other skill—the more you practice, the better you get. Once you have your digital ducks in a row, you must take the time to be proficient with them. While this will undoubtedly add unbillable time to your day, your proficiency will likely pay off when it comes to convincing the people in your virtual courtroom that you can—and should—be trusted.
