4 Tips to Manage the New Pandemic Courtroom

In my younger days, I would watch Star Trek.  One episode I recall involved a trial where a captain of a Federation Vessel was accused of wrongdoing.   The Federation tribunal was in one place; the defendant-accused was in another place; exhibits were retrieved remotely and introduced from the scene of the crime; witnesses were called to testify in far away places; and all was recorded electronically.   It seemed to be as fantastic as Dick Tracy talking to everyone from his telephone watch.

While technology continues moving at a rapid pace, the COVID-19 Pandemic has launched yesterday’s legal system into an unbridled technology of tomorrow.   On April 6, 2020, the District Courts of Bexar County implemented trial procedures to keep civil cases moving forward.   Federal Courts around the country, courts in different states and courts throughout Texas are similarly adapting in civil and criminal cases.  

Today, lawyers appear at docket calls electronically.  Cases are scheduled for hearings via Zoom after attorneys file their pleadings, exchange exhibits, announce the time needed and identify witnesses.   Judges schedule hearings where participants ask questions, testify or argue in front of their computers with cameras.  Exhibits are scanned instead of being filed manually.   Judges and court reporters are in different rooms.   And lawyers must be more prepared to proceed as all exhibits must be on file with opposing counsel prior to the hearing.   Little room exists for omitting an exhibit and trying to enter it at the last second - - surprising your opponent.  

While lawyers need to be prepared, these desperate times that lead to these desperate measures also means clients and witnesses must be well prepared prior to our new electronic hearings.   The witness can no longer look across a room to see how testimony is being received.   The witness or client cannot look to counsel for guidance from miles away.   Yesterday, being in an actual courtroom was scary for any witness or party.  Today, being asked to navigate a screen during testimony, being forced to maintain composure while all alone, being asked about documents on a screen, and the possibility of losing an electronic connection adds to the stress levels of all involved.  

In these dangerous times, it is important to maintain a positive attitude, to maintain composure, to treat others with courtesy and respect, and to protect our loved ones.  These principles apply in our quarantined neighborhoods and in the current electronic courtrooms.  Attorneys must provide clients and witnesses the extra information needed to keep everyone calm, focused and persuasive.   Here are some simple tips to manage our current courtroom experiences.

1.) Treat all hearings as they were treated a year ago.  - Clients and witnesses need to dress respectfully.   Judges take notice of people who are serious about the proceedings and those who are cavalier or disrespectful.   Be the person whose opinion the judge feels was delivered in a courteous and respectful manner.  

2.) Take a deep breath and relax. -  All witnesses want to say their piece and leave.  They know what they want to say and how they want to say it.  WRONG.   Witnesses must understand lawyers ask questions and witnesses should only answer those questions AFTER the question is completed and AFTER the judge rules on any objections.    Witnesses should understand that this may mean a lawyer will be waiving at a screen or a prompt may come on the screen suggesting the lawyer wants to object.   Before answering any questions, witnesses should wait until the judge listens to the objection, rules on the objection and then instructs the witness how to proceed.

3.) Answer the question asked. - There is limited time afforded in these hearings and each lawyer has a good idea what the judge needs to know and how the lawyer wants information delivered.   And remember, if the judge wants to know something specific, the judge may ask a question as well.   Lawyers should let witnesses know that everyone in the proceedings is human and these procedures are new to everyone.   The judge is nervous; the lawyers are nervous; and the witnesses are nervous.   Witnesses should focus on what the question asked requires and witnesses should not worry about the consequences of their answers or the reasons that a lawyer might have for asking the question.   Honesty is the best policy at all times.   There is nothing wrong with saying “I don’t know” when you never had the information or saying “I don’t remember” if you forgot something that happened some time ago.  A witness who remembers every detail with specificity is probably not telling the truth.

4.) This is a presentation to a judge. -  Keep track of where your face is on the screen.  Do not rock back and forth or from side to side.  Keep your hands off of your face.    Where you need to look at a document, do so and then answer the question while looking at the camera lense. Again, this is a presentation where someone must see AND hear the witnesses and attorneys.   Speak with sufficient volume and clarity.  Take your time and speak calmly.

Every case is different.  Every witness is different.  Lawyers will continue preparing their cases as best they can.  The truth should be demonstrated at every hearing and justice should prevail.   Knowing the ground rules before attending the new electronic hearings of the pandemic will help reach that goal.   Hopefully, the pandemic will pass soon, but do not be surprised if the future brings more hearings from remote locations, if we don’t always see each other in person or if a lawyer consults with you via FaceTime.   “The good old days” may have passed, but tomorrow will always bring new challenges we can meet with a confident smile on our faces - - as long as we prepare for those challenges.