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Jason A. Proctor
Virtual Litigation: Practical Considerations
By Jason A. Proctor and Michaela L. Cloutier
If you’re struggling to adjust to virtual court proceedings, you’re not alone.1 While attorneys, clients, and judges report positive experiences with virtual proceedings, most prefer final hearings and mediations occur in person,2 and many attorneys report experiencing remote hearing mishaps.3 But Covid-era litigation doesn’t have to be stressful. Some simple suggestions can have you clicking “join meeting” anxiety-free in no time.
Preparation
Check the hearing notice in advance so you know where to “show up,” and confirm that you have the correct link or passwords required for access. Restart your computer and open the programs you will be using ahead of time to confirm that your software is up-to-date, and to allow time to obtain IT support if necessary.4 Be sure to check your computer’s power source or battery level before the proceeding begins.
Familiarize yourself with the controls when using a new system—especially the camera and microphone functions. Take advantage of a court’s “technology test drive” if one is offered—especially ahead of trials or other proceedings where appearances are paramount.5 If no practice time is offered, most virtual meeting software has some variation of a “test call” option to ensure everything is working properly. If you have questions regarding the software you can or must use during the proceeding, contact the court staff or the meeting host in advance.
Dress Yourself, Your Background, and Your Computer for the Best
Judges appear to agree that the dress code for virtual court is the same as the dress code for in-person court.6 While business attire “on the top” is the bare minimum, it’s safer to also wear court-appropriate clothing on your lower half. You may need to step away from the camera during the proceeding,7 and some courts might require participants to pan their camera around the room to demonstrate that they’re alone.8 It’s important to display a professional environment.9 If you are unable to curate a presentable backdrop, consider using a virtual background instead. Make sure your image is well-lit and that your camera is positioned near eye level.10
To avoid potentially embarrassing situations if you need to share your screen— and to ensure that your virtual meeting software operates as efficiently as possible—close all unnecessary programs and tabs. Remove unnecessary folders from your computer desktop to make it presentable,11 or avoid showing your desktop altogether. And remember to hide any client communications or work product prior to sharing your screen.
During the proceeding, keep up good appearances by maintaining eye contact
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Trial Tactics
Michaela L. Cloutie
FDCC ANNUAL INSIGHTS 2023