Holland & Hart - Persuasion Strategies

It has long been an option, but it is happening quite often now: The judge lets you know that if you want to move your case forward, we will need an online hearing using Zoom web conferencing or similar media. The experience will not be as communicatively rich as an in-person hearing, but it will be better than conducting it by phone, and much better than waiting for the return of live proceedings and the easing of the backlog.

One example of the approach in state courts comes from a recent report by Michaela Paukner in the Wisconsin Law JournalShe notes that Zoom accounts have been obtained by all of Wisconsin’s 249 circuit court branches, and judges in 23 counties are conducting Zoom hearings that are also livestreamed on public YouTube channels. Zoom hearings are available to all judges to use at their discretion, and Director of State Courts Randy Koschnick comments that they have been adopted quickly. Even the Wisconsin Supreme Court has nine upcoming cases scheduled for Zoom hearings. “Most judges are really experimenting with the new tools and doing so successfully,” Mr. Koschnick explained. Attorney Mike Wittenwyler of Godfrey & Kahn is also quoted observing, “In speaking off the record after the meeting, I think the attorneys are pleased that we’re at least able to move forward on these things.” But change requires adaptation. Some judges are more tech-savvy than others, but ultimately it is in the interests of the attorneys to make sure that the communication plays out smoothly and effectively, particularly when the hearing isn’t just pro-forma, but involves argument. In this post, I will note five considerations that lawyers should bring to their preparation for Zoom hearings.

Test Your Connection and Your Arguments

In the article, Mr. Koschnick recommends that lawyers should test the technology they plan to use in advance of any hearing. The goal is to assess the bandwidth and the connections, checking for anything that might slow down or interrupt the signal. It is also a good idea to make this a test of a reasonable duration, because as we have all noticed, everything can be fine one moment, and then pretty sketchy the next.

The best way to run a long-term test is to actually practice your full arguments. Loop in some uninvolved colleagues and treat it as a full “murder board,” with you responding to questions and arguments on the fly. That is probably easier to put together on Zoom than it is in person.

Learn to Share the Screen Effectively 

Another advantage of the web conferencing medium is that it directs a lot of attention to what is on the screen. Rather than being just one object in a room, the screen becomes the entirety of everyone’s focus. For that reason, the exhibits you show, highlight, and manipulate may end up getting more attention than they would be getting if they were used in live in-person hearings. So, take the time to learn how to share your screen smoothly, without being distracting or calling attention to technology. Learn how to mark up and highlight the documents as you use them or have someone else do that so that you can focus on your arguments. You also will want to make sure you don’t disappear when you use documents, so test to make sure you know how to keep your own camera on, with your face sized appropriately and not obscuring any important part of the screen that you are sharing.

Facilitate Interruptions 

If you have a “hot bench,” then you can expect the judge to interrupt in order to ask questions and make arguments as you present. As I wrote some time ago, that can be a good thing: By hearing what your judge is thinking, you have the chance to present an integrative argument that directly addresses their gaps and counterarguments. In a Zoom hearing, however, that good thing can be a little harder to manage. We have all noticed how turn-taking can be more difficult to manage. In a live setting, when someone cuts in, there is brief over-talk, and we hear both voices. Services like Zoom, however, will select one and only one audio source, so an attempted interruption might be missed. So, it is a good idea to set up a rule of thumb with your judge:

Your honor, because it is more difficult to manage turn-taking during web conferencing, I suggest that you give me a visual signal if you have a comment, a question, or any other input you want to add as I present. If you just put up your hand like a stop sign, I will stop right away. 

Keep It Professional Within the Camera’s Frame 

I have written recent posts on the importance of effective camera position as well as other best practices for communicating via web conference. While much of this seems like common sense, it does seem that not all attorneys are getting the message. The Wisconsin Law Journal article, for example, mentions a Florida judge who recently criticized an attorney for appearing shirtless and another for joining a meeting from the comfort of her bed. As Mr. Koschnick, the State Courts Director, advises, “Remember that you’re still appearing in court, so it’s important to have an appropriate background and to dress appropriately. We want to keep it a dignified proceeding, even though we’re using video technology.” So, find a formal and neutral background, and even if you are presenting from your desk, you should still be wearing pants.

Figure Out an Internal Communication System 

Finally, assuming that you are not acting solo as an attorney, you should discuss and practice a way of communicating within your team during the hearing. Mike Wittenwyler, the Godfrey & Kahn attorney, shared that in preparing for Zoom arguments in front of Wisconsin’s Supreme Court, he and his partner discussed everything that would make the experience different. “Basically, you’re going to be texting each other through the argument,” Wittenwyler said. “We’re not sitting at the counsel table together.”

Both the attorneys and court personally quoted in the article still see this Zoom-reliance as an exceptional situation and look forward to a return to normal. But once we are on the other side of the pandemic and the protests, there is a chance that some of the changes will stick. For example, if we can handle simple hearings more quickly with less time and travel by hosting them online, then we probably should. It would be one step toward making litigation and trials less onerous and expensive for the parties.