Professional communications today are pervasively mediated by technology. Courtrooms, conference rooms, and judges’ chambers — those familiar environments where most of a litigator’s work was traditionally accomplished — are now frequently replaced by microphones, cameras, and computer screens.
As is the case with most technological progress, these changes carry both peril and opportunity. And while peril is perhaps too strong a word, it is nevertheless true that litigators who thrive in the courtroom but struggle to summon a similar performance online are less effective today than yesterday.
We asked several trial-technology and online-advocacy experts for their advice on how lawyers could raise their game when it comes to remote hearings and depositions. All agreed that time spent honing online presentation skills and developing expertise with a few key technologies are the key differentiators between a compelling and a humdrum presentation.
However, they did have a few suggestions for technology purchases that would help lawyers put their best foot forward and handle the technology breakdowns that inevitably await even the most prepared remote litigator.
As it turns out, not too much technology is needed to help online litigators shine. However, what is needed is badly needed. According to the experts we consulted, the following four small technology investments will help online litigators get their message across to the judge and jury sitting just behind the camera lens. They’re listed below, roughly in order of their importance for creating an effective online presentation.
Many studies support the view that good audio is critical to maintaining viewer interest during video presentations. Viewers will disengage from presentations with low-quality audio, and those who hang in there despite poor sound quality will struggle to retain the content of the presentation.
Christopher J. Dominic, President and Senior Consultant at Tsongas Litigation Consulting Inc. in Portland, Ore., recommended that all attorneys involved in remote hearings and depositions take steps to improve the audio and video capture capabilities of their laptop computers.
Laptops — including many of the newest and best models typically used by attorneys — have less-than-ideal cameras and microphones, Dominic said. Outfitting those laptops with a new microphone is, loosely speaking, like “the difference between moving from AM to FM-quality sound.”
Blue Yeti microphones are a frequently recommended option. They connect to the laptop via a USB port, they don’t pick up a lot of ambient noise, and they’re affordable.
In addition to being high-quality devices, Blue Yeti microphones can be optimized for the most common remote-hearing scenarios, Dominic noted. There is a switch on the back that enables an attorney to optimize it for a single speaker on a Zoom call (cardioid mode), sharing one end of a call between two speakers (bidirectional mode), or for multiple people in a conference room setting (omnidirectional mode).
Noah Wick, National Director of Litigation Consulting at Trial Exhibits Inc. in Seattle, said that upgrading the microphone and camera that comes preinstalled on the laptop is the best technology investment a virtual litigator can make. Wick recommended purchasing a Blue Yeti USB microphone and a Logitech C922 webcam. These two devices can be purchased together as a “Pro Streamer Pack” for as little as $150.
“That package is a game-changer for most people,” Wick said.
It helps some attorneys to have a webcam that lights up during video capture, Dominic noted. For example, several Logitech webcams will emit a blue light adjacent to the camera lens. “This feature helps the attorney to focus on the camera, which is critical to effective online communication” he said.
Ted Brooks, Managing Partner at Litigation-Tech LLC in Los Angeles, said that a remote-controlled webcam can be effective in remote arbitrations and trials. Remote webcams, which are often marketed as remote-conferencing cameras, allow their operators to pan the room, moving from one individual to the next, and zoom in for a closer view of individuals or evidence. A single remote camera can replace several individual webcams and, when used correctly, can reduce the number of Zoom windows displayed on the user’s screen to as few as two.
Brooks recommended that attorneys use what he calls “industrial-strength Wi-Fi” devices in locations where the quality of the internet connection is unknown (or known to be poor, such as in most courthouses). These devices, manufactured by companies like Pepwave and Cradlepoint, can prevent the connection from being dropped, increase data transmission speeds, and, in some cases, provide additional security for the connection.
A less-pricey internet connectivity solution recommended by Wick is a “MiFi” unit, a small portable router that acts as a mobile hotspot for a laptop or mobile phone. MiFi devices are sold by all major telecom service providers. Popular brands are Nighthawk LTE Mobile Hotspot (AT&T Internet), Inseego 5G MiFi (T-Mobile), and JetPack MiFi (Verizon).
The hotspot function that comes with most cellphones can also be used in a pinch. “One of the best things attorneys can do is learn how to use the hotspot on their phone as well as making sure their remote experts and witnesses know how to as well,” Wick said. The objective is to always have a backup plan in case the internet connection at the remote location is unsuitable.
Finally, there’s the humble Post-It Note, which can come to the rescue when modern technology fails. It’s a good idea, Wick said, to take a moment before the hearing or deposition begins to write down the telephone number for the videoconference. That way, if a technology hiccup occurs and the attorney is dropped from the videoconference, he or she can call the other participants and alert them to the problem.
Participants in remote hearings and depositions are often physically located in environments that create concerns among some lawyers about the background visible over the lawyer’s shoulder. It could be a home, the client’s place of business, or even a video production studio. These lawyers worry the actual background will appear distracting, privacy-invasive, or unprofessional. For some, a green screen that replaces the background with an image of the user’s choosing is a tempting solution.
However, a green screen, if carelessly employed, will appear worse than the background it’s intended to hide. A properly deployed green screen background requires substantial additional preparation and video-lighting expertise.
“In order for a green screen to work effectively, you have to light it differently than the presenter,” Wick explained. “Attorneys should hire a technician if they’re going that way.”
Wick noted that, based on juror research during the pandemic, jurors can have negative impressions of green screens. “Many don’t like it,” he said. “They feel the attorney is trying to ‘put on a show.’”
It all comes down to practice and preparation.
Dominic said that although many attorneys have proven to be quick and enthusiastic learners of online presentation skills, a significant portion of the bar isn’t yet where it needs to be. “‘Listen to the screen, talk to the camera’ is what we tell them,” Dominic said. “Some have embraced it, some have not.”
With so much legal work now taking place online, the new reality of virtual lawyering has created a new opportunity for attorneys who take the time to develop their online presentation skills, Dominic said.