Trial by Zoom: Using Online Platforms in Administrative Proceedings, Trials, and Oral Arguments

Coauthored by Duncan Greene, Attorney, Van Ness Feldman, LLP

Before the COVID-19 pandemic, nearly all judicial proceedings were held in person, as were quasi-judicial proceedings like appeals to local hearing examiners. In response to the pandemic, however, courts and hearing examiners have adopted remote technologies like Zoom and other platforms, which are now widely used for a variety of proceedings.

This blog post provides a high-level overview of the current state of virtual proceedings and pointers for advocates navigating the shift from in-person to virtual proceedings.

Types of Virtual Proceedings

Some types of virtual proceedings work better than others. In general, proceedings that are less complex and have fewer participants, like status conferences and depositions, tend to work well in a virtual setting. Virtual oral argument can also work well, with appropriate preparations (as suggested below).

Proceedings that are more complex and involve more people and moving parts — such as witnesses, exhibits, a court reporter, and jurors — are more challenging. However, courts and hearing examiners have started experimenting with the use of videoconferencing for open-record hearings, bench trials, and even jury trials.

Practitioners report mixed results in virtual Alternative Dispute Resolution (ADR) proceedings. A key factor in determining whether to pursue virtual ADR is whether the lack of in-person emotional engagement is helpful to the dispute resolution process (as has been reported in some family law cases) or detrimental to that process (as has been reported in some purely financial disputes).

Virtual Proceedings Across the Country and in Washington State

Courts and quasi-judicial bodies across the country have adopted remote technologies quickly. Texas has already held what are believed to be the first civil and criminal jury trials by Zoom, and the King County Superior Court held its first remote jury trial in July 2020. Even the U.S. Supreme Court held telephonic oral argument, resulting in the “flush heard ‘round the world.”

Adjudicators in Washington State have also widely adopted remote technology. The Ninth Circuit, the Western District of Washington, and nearly all of the state appellate courts are hearing oral arguments virtually. Division I of the Court of Appeals is the only appellate court in Washington that has resumed in-person sessions after instituting new safety protocols. The superior courts are conducting most proceedings remotely, particularly for civil matters, including virtual civil bench trials. While some courts resumed jury trials during the summer, in November, many courts suspended jury trials again due to rising infection rates. (For example, see announcements from Snohomish County and Spokane County. King County has suspended in-person jury trials but is conducting civil jury trials virtually.) Finally, many hearing examiners are holding remote proceedings only.

Preparing For Virtual Proceedings

Here are some quick tips and considerations when preparing for virtual proceedings:

• Check for updates and protocols. Courts are continually adopting updated protocols. Verify what types of proceedings are being conducted in person or remotely and check for any new protocols for remote proceedings (for example, see the protocols provided by Snohomish County Superior Court and the Seattle Hearing Examiner).
• Become familiar with the platforms. Zoom is a popular platform, but others, such as WebEx and GoToMeeting, are also in use and each has a different interface. Get familiarized with key features and options, such as muting and un-muting, screen-sharing, and chatting.
• Prepare a back-up plan. Many platforms allow participants to call in by phone. If you run into major technical issues mid-hearing, consider whether you can effectively switch to participation by phone.
• Minimize sound issues.  Muting yourself when you are not speaking helps minimize echoing and background noise. Also, many headsets and headphones come with microphones that produce better sound quality than the built-in microphones on laptops and computers.
• Check your lighting. As a general rule, face the brightest source of light and avoid having windows or lamps above or behind you.
• Prepare your environment. Find a quiet place where you can minimize background noises and distractions and ensure that your environment looks professional and appropriate when onscreen.
• Conduct practice sessions. Hold a session that includes witnesses and clients.
• Considerations for oral arguments:
  • Consider standing for your argument, which will simulate the “podium” look.
  • Think about where your eyes will be looking — at the judge or justices hearing your argument; at your notes on the screen (or on paper); at the camera; or some combination of these? Try to minimize shifting your eyes back and forth, which can create an impression of untrustworthiness.
  • Some attorneys have reported success in creating a makeshift “teleprompter”: a separate computer screen that is placed just above and behind the primary screen and controlled with a wireless mouse, allowing speakers to scroll through notes without dramatically shifting their eyes away from the camera.
• Considerations for evidentiary hearings:
  • Think about how exhibits will be presented. For example, are all parties able to share exhibits electronically? Who will be responsible for presenting exhibits? If you will be presenting exhibits by screen sharing, be aware of what is being shown on your screen and take steps to avoid inadvertently leaving confidential material on screen.
  • Address concerns about witness collusion or coaching. Consider asking witnesses foundational questions to ensure that they are alone, are not receiving off-screen coaching, or are not reading off-screen notes. Your witnesses should be prepared to answer similar questions from opposing counsel or the adjudicator.
  • Have a communication plan. Decide how you will communicate with your co-counsel and witnesses throughout the hearing (e.g., email, text, or chat).

Conclusion

Attorneys may prefer in-person proceedings, but, like it or not, virtual proceedings have become the new normal during the pandemic. Given the efficiencies and cost savings that remote proceedings can provide, we should expect at least some continuing use of remote technology. Attorneys should plan to learn and practice new techniques to become effective on-screen advocates.