In an interview for Online Litigation, Nicole Westbrook addressed several best practices for managing IT, nervous clients and the possibility of expanded subpoena power. Watch the interview here and read a summary of Nicole’s remarks.
An audience wants to be entertained. Each time a litigator steps in front of six to 12 people in the jury box, the litigator knows they must put on a presentation to keep the “audience” engaged. The litigator is on their feet, moving around, throwing up flashy exhibits, and timing the exhibits to come to the big impeachment moment.
Audiences perched in front of a 11 x 17-inch screens want to sit back and forget where they are. This happens a lot in a video deposition, for example, when a witness being questioned is not forthcoming with information, making it hard for the audience to warm up to the witness quickly and easy for the audience to zone out. Or, for example, in trade secret or intellectual property cases, where attorneys with strong engineering backgrounds come in and talk shop, jurors often have to struggle to stay awake.
With video-based depositions, litigators must approach arbitration and mediation differently, learning the platform and how to entertain in an environment where the energy comes from a single source, the attorney presenting. For that litigator, it means taking a step back and viewing how Zoom has become an equalizer, where all attorneys risk coming across as the same boring human being.
Recognizing these equalizing effects, a litigator can learn to rise above.
Creating a tight, punchy and flashy presentation takes preparation for a Zoom audience. Effects that come naturally in the courtroom can look hollow on the small screen. Presentations on a Zoom platform can look the same unless a litigator conscientiously amps up the surprise and intrigue, making the proceedings more interesting. Taking more breaks and making sure people are paying attention before moving on works in an attorney’s favor.
An important feature of what litigators must do is to simplify the narrative and issues. An attorney may file six claims prior to litigation but only walk into trial with the most substantiated claims. Narrowing down a case is even more important in video arbitration and mediation. The longer a video presentation is, the greater the chance of losing the listeners. Nobody has the capacity to sit and listen to a case for five days over an artificial platform. By narrowing down the case and adding written briefings ahead of time, the issues are condensed and the trial unfolds faster. This narrower focus should transfer over and be helpful in expediting litigation proceedings post-pandemic.
Some of the lessons learned during the pandemic will work themselves into everyday legal activities, making court proceedings easier, more convenient and less costly. If a witness for a deposition or an expert witness for trial does not need to travel, that is a huge cost savings to the client. Lowering the cost of litigation means some previously cost-prohibitive cases may move forward.
The courts have now upgraded their technology to work remotely. The legal profession has been forced out of the nest, to go ahead and learn a way to do things differently. One significant change that may result is an expansion of subpoena power. Right now, a rule might preclude an attorney from subpoenaing anyone outside a state or a certain radius to the courthouse. With Zoom hearings, individuals can prop their computer up on their kitchen table and remote into a trial, making location irrelevant. This would give attorneys access to witnesses that could never have been brought to trial before and allow for live testimony in front of the jury via video feed—a much better viewing experience than having to replay a recorded part of that deposition or having an actress or actor read the transcript.
Some of the biggest snafus seen during the pandemic have been with what’s going on with filters or in the background–the famous cat filter. These types of mistakes detract and distract from the proceedings. An expert witness wearing a Van Halen t-shirt with posters of women in the background happens and can be stressful. Depositions taken on a cell phone or tablet are also a mistake.
Generally, though, people have been tolerant and flexible during the pandemic. They have been making it work and finding ways to carry on. Judges have been kind, allowing for blunders and giving people time to get up to speed. That has been heartwarming in our world.
Despite advances in remote-technology capabilities, it is, however, time to get back in the courtroom. There just is no substitute for being in person.
Access Nicole’s NITA presentation addressing the impact of video depositions, arbitration and mediation on litigation here.
Nicole Westbrook, an attorney with Jones & Keller P.C., litigates complex business matters, achieving outcomes that improve lives, and is a trial instructor and frequent writer on legal issues. Nicole can be reached at firstname.lastname@example.org.
This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the matters addressed above.