In an article for the Oregon Association of Corporate Counsel News You Can Use newsletter, Markowitz Herbold trial lawyers Jeff Edelson and Chad Colton discuss remote trials and arbitrations during COVID.
Zoom Trials and COVID Arbitrations – Embrace the New Normal By Jeff Edelson and Chad Colton, Markowitz Herbold PC While our courts have either stopped or severely limited civil trials, private arbitrations are thriving in the COVID-19 environment. Between the two of us, we have handled seven arbitrations just since the COVID shutdown began. Without the availability of courthouses and juries, arbitrators are conducting short, in-person trials or running trials via video teleconferencing platforms from their offices or homes. Lawyers and their clients who embrace this new normal will appreciate the efficiency and pace of Zoom trials and abbreviated in-person trials. For example, witnesses are not expected to travel to attend trial. Adaptation is not difficult, but it requires new skills and attention to the details.
Here are some tips for trials by Zoom:
1. Prior to the trial, encourage the arbitrator to hold any pretrial conferences on the same platform you will be using for the arbitration. This will give you insight to what the virtual courtroom will look like.
2. Ensure that you and your witnesses have a strong internet connection. You and your witnesses should have all other internet applications closed.
3. Set your camera to properly frame you. Invest in an external camera and a lighting ring for best results. Conduct a test run with your witnesses and help them look and sound their best. This includes a suitable professional background or a virtual background. You don’t want to look like you or your client are in the basement.
4. Develop and display competency with the technology. This means you should practice by recording your appearance and sound in advance, and then make necessary adjustments. Have IT personnel available in case of emergency. Plug into an outlet, rather than rely on your computer’s battery. Understand how to publish documents using the chat function and the screen share function. Be ready to publish deposition transcripts to impeach adverse witnesses. Arrange for you and your attendees to display their full names with your onscreen image. If you are working from home, reboot your modem a day or two before the trial.
5. If the parties agree, use court reporting services and have the court reporter host the Zoom trial. This will enable you to focus on the trial itself and leave the bulk of the IT issues to the court reporter.
6. Provide all your potential exhibits in advance to the judge/arbitrator and the witnesses. Include exhibit numbers and page numbers so that everyone can be on the same page, literally.
7. Dress appropriately. Court attire is expected, at least from the waist up.
8. Establish attendance protocols that minimize distractions. For example, request that all attendees (other than the arbitrator(s)) mute their microphones and turn off their cameras when they are not expecting to speak.
9. Rely on your paralegal to attend and help you make corrections for appearance, pace, and clarity. Your paralegal can also coordinate with witnesses to arrange for their timely arrival into the virtual waiting room.
10. Record the proceedings. The host must give you permission to record. Make notes during the trial to help you find key testimony you will want to replay or refer to in your closing argument.
11. Be sure to mute yourself and your witnesses during breaks.
12. Remain flexible. For example, if a witness cannot establish or maintain a clear signal, be prepared to provide a dial-in number so they can appear telephonically into the trial.
And here are some additional tips for in-person arbitrations during COVID:
1. Use a large conference room and ensure that it is set up for social distancing. Designate the specific locations at the conference room table(s) where counsel, clients, and witnesses will sit. Set up folding tables for any overflow needs.
2. If possible, place acrylic screens between each seat to minimize transmission of airborne droplets and help participants feel secure.
3. Spend time familiarizing yourself with the conference room setup before trial begins. Social distancing protocols are likely to create odd seating configurations and can affect visibility and flow in the room. This, in turn, may affect how and where you deliver your opening statement, display exhibits, conduct direct and cross-examinations, and make your closing argument.
4. Ensure that the witness seat is placed in the most direct view of the arbitrator. This may require considerable forethought due to difficult seating arrangements. The witness seat and area should be sanitized after each witness.
5. Masks make it difficult to hear witnesses and lawyers. You and your witnesses should speak slowly and clearly to ensure the arbitrator understands.
6. To reduce contact and the spread of the virus, do not hand exhibits to witnesses, opposing counsel, or the arbitrator. Instead, provide the arbitrator and opposing counsel with full exhibit binders before trial begins, and provide each witness with a binder containing the specific documents that will be used during his or her examination. Alternatively, set up a computer screen within the witness’ view and display exhibits on the screen.
7. Communicate COVID protocols to participants before trial begins and ensure that all participants follow the rules.
8. Agree to remote appearances to accommodate participants and witnesses who are unwilling to appear in person due to COVID.
If you have any questions about remote trials or arbitrations, please feel free to contact us. We are happy to answer your questions.