Digital transformation hits the legal system as courts have to find a new way to take testimony and conduct hearings virtually.
Lawyers, judges, and clients are in the middle of a crash course on using Zoom for remote work due to the coronavirus lockdown. Lawyers are using Zoom, FaceTime, Google Duo, and other online collaboration platforms to meet with clients and interpreters as well as appear in front of a judge.
The CARES-ACT allows the chief judge of a district court to use conference platforms for certain proceedings, such as motion hearings, appeals, or other urgent cases. Experienced lawyers say that this transformation is long overdue.
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Robert J. Alvarado Jr., CEO at CourtCall, said that courts will not return to long lines and crowded facilities when remote access will allow them to effectively continue to do their work.
"The adoption and expansion of remote appearances will be pursued at a much more rapid pace for months and years to come," he said.
Lawyer Kay Van Wey first experienced online court proceedings during the 2014 Ebola outbreak in Dallas. She said that online proceedings represent a tremendous advancement in promoting judicial economy and efficiency.
"Many hearings are lawyers only, arguing legal motions or taking up general scheduling issues with the court, and even hearings which require that testimony be given, can be conducted remotely," she said. "It just takes a little creativity."
There are conflicting incentives within the profession, as defense lawyers often bill by the hour, while lawyers representing a plaintiff are often paid based on the result of a case.
Here are the advantages and disadvantages of conducting hearings online as well as a few best practices.
Online proceedings save time and money
Trial attorney Michael Romano said that Zoom hearings offer several advantages over in-person court appearances including ease of use, increased efficiency, and lower costs.
"I've found the quality of Zoom-recorded interactions to be better than official court records not only because of the technology but because the mics are much closer to the participants," he said.
Romano said the biggest change he has seen is lawyers using Zoom to communicate with clients and other attorneys.
"In the past two weeks, I've conducted settlement conferences and even depositions by video, and I never would have done that a few months ago," he said.
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Alex Granovsky, an employment lawyer at Granovsky & Sundaresh, said he allows two hours for an in-person hearing in federal court in Manhattan that requires about 15 minutes in front of a judge.
"For the same hearing online, I show up to the online conference five minutes early, have the 15-minute conference, and am done in 20 minutes," he said.
Granovsky said another advantage of a Zoom conference is that it allows a lawyer to work in his own workspace, with files and other information within arm's reach.
Romano added he has found Zoom's security to be sufficient, and that official court business is open to the public, so even if an uninvited person joined a hearing, it would be no different than having a stranger sit in the back of a public courtroom.
Robert J. Alvarado Jr., CEO at CourtCall, said that there are risks to allowing Zoom or other platforms to be installed on court devices and court networks and that courts generally do not wish to allow such access, given security concerns. CourtCall is a software platform that replicates the courtroom for procedures as well as providing scheduling tools.
Alvarado said that using a dedicated platform provides formal training for judges and lawyers instead of expecting everyone to self-teach from online materials.
Mastering Zoom etiquette
Russell Nicolet, president of Nicolet Law Office, said lawyers need to master online conferencing before a hearing starts and be able to adjust audio and video settings on the fly.
"You want to eliminate any variables that could lead to you appearing late, appearing without sound or video, or not appearing at all," he said. "Not only do these issues amount to undue stress for you and your client, but it is an easy way to lose a judge's patience."
Nicolet said that a quiet, neutral location is key when conducting a hearing online.
"You cannot afford to miss anything a judge or opposing attorney is saying in court, nor do you want a portion of your argument or presentation to the court to be buried by background noise," he said.
Granovsky said that people who are better at in-person communication lose that advantage during virtual proceedings. He said he also sees a need for legal firms to have better presentation tools for presenting exhibits in a more sophisticated manner.
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Romano said lawyers and clients sometimes need a reminder to treat a virtual appearance as seriously as an in-person appearance.
"My preference is to tell participants to pretend they are actually in a courtroom, and that means you dress and act like you're in an official proceeding--because you are," he said.
Best practices for online court appearances
Ines Swaney, a certified Spanish interpreter, said her first experience with Zoom was a three-way conversation during a legal visit between an attorney in one city, the attorney's incarcerated client joining the conversation from jail in another city, and herself serving as an interpreter in a third city.
One drawback with the Zoom platform is that it forces an interpreter to use consecutive interpreting instead of simultaneous interpreting, which is the preferred approach.
Swaney said that online platforms also need to allow private conversations between an attorney and the judge, and among an attorney, client and interpreter who may need to speak privately for a brief period of time during a hearing.
Tony Sirna, legal strategist and customer success manager at Verbit, said there are serious considerations the courts are working through, particularly ensuring due process with remote proceedings, technology interruptions, unauthorized recordings, exhibits, and the impact virtual appearances will have on defendants, for example.
Sirna said in addition to standardizing software and recording technology, courts need to agree on procedural best practices, such as how exhibits and stipulations will be handled remotely. Verbit works with courts and court reporting agencies that provide transcriptions for court proceedings, including trials, hearings, and depositions.
Lawyer Michael Alexis, the CEO of Team Building, said that not everyone has access to an Internet connection that will support a Zoom call.
"An unstable connection with a delay or lag in service could potentially prejudice the case," he said.
Alexis also said that online court proceedings should take into account the risk of digital fakes.
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