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Trial Tactics
with the camera. Avoid eating and drinking,12 and minimize external noises, including sounds coming from your own computer, whenever you are unmuted.13
Establish the Ground Rules
Early in the pandemic, the Conference of State Court Administrators and National Center for State Courts recommended that judges check with each participant at the beginning of virtual proceedings to ensure they understood the procedure that would be followed and the manner in which they would be able to participate.14 While judges may have ceased this practice over the past three years, attorneys shouldn’t. Procedures and expectations related to party participation, camera usage, the mute button, and technological requirements vary between courts and types of proceedings.15 The best practice is to confirm that you understand the manner and method of participation before the proceeding begins. Be sure to understand whether all participants should have their cameras on, whether microphones should be muted unless participants are ready to speak (including for objections), whether objections will be reserved due to potential internet lag, and how courts will handle a total loss of internet connection by one or more participants.
Exhibits
Verify that you have the latest version of any software you might need to show exhibits. Some courts have adopted litigation-specific exhibit software for virtual proceedings, while others allow litigants to use whatever software they already have.16 Some courts request submission of exhibits ahead of time. Additionally, you should inquire about the court’s procedures for physical evidence ahead of time, as it may require obtaining stipulations regarding authenticity or delivery of physical evidence to the court in advance of the proceeding.17
Attorney-Client Communications
Determine whether there is a designated procedure for attorney-client communications. Some courts create “breakout rooms” within Zoom sessions for attorneys to consult with their clients during breaks in the proceedings. But breakout rooms are typically controlled by the meeting host, meaning you must monitor the breakout room participant list to ensure you are alone with your client. According to Zoom,18 breakout rooms can be recorded, but only by participants in the room. Ensuring you and your client are alone in the room will likely be sufficient to ensure your conversation is confidential, at least in a proceeding using the Zoom platform. Other methods of client communication—such as a phone call—may be less cumbersome, but be sure to confirm your computers are muted before calling. Also be wary the chat function within Zoom and similar platforms, as it can be difficult to ensure such messages are private, 19 and texts or emails should be safer options.
Jason A. Proctor is an FDCC Defense Counsel member, and a member of Flaherty Sensabaugh Bonasso in Charleston, WV. Contact him at: jproctor@flahertylegal.com. Michaela L. Cloutier is an associate and is also in the firm’s Charleston, WV, office. Contact her at: mcloutier@flahertylegal.com.
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FDCC ANNUAL INSIGHTS 2023