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NEED A DIGITAL TRIAL LAWYER?

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The COVID pandemic has created a new type of lawyer: The Digital Trial Lawyer. Like it or not, the Digital Trial Lawyer will be a part of the legal landscape long after the pandemic is a thing of the past. The main tool of the Digital Trial Lawyer of today—Zoom. As we’ve all experienced, the pandemic initially halted court proceedings except for those that were most urgent. In most jurisdictions, essentially all in person court appearances and all non-criminal trials occur virtually.        

As a result of the termination of in person judicial proceedings during the pandemic, Treblaw lawyers have been called upon in the last four months to represent clients in three Zoom trials, one Zoom arbitration, multiple Zoom mediations and countless court appearances.

Like it or not, gone are the days when all hearings are done in person. Snail mail and faxes—forget about them. Lawyers unable to leverage the power of computers and sophisticated software—soon to be a thing of the past. Believe it or not, many “experienced attorneys” do not even know how to type, text or even operate the electronic filing systems required by most courts. That’s bad. Those days are also over.

When Digital Trial Lawyers use Zoom in sophisticated legal settings like trials or arbitrations, the skills required are orders of magnitude more difficult than the use of simple software or tools like email. Effective use of the Zoom requires the skill and knowledge to adjust to inevitable software and hardware glitches. The Digital Trial Lawyer also needs to be able to quickly access and present digital documents and court filings in real time even when the specific question to be addressed was not or could not have been predicted.

Zoom is a tool of necessity, not one of choice. Once Zoom is moved past the simple application of multiparty remote meeting, the deficiencies, inefficiencies or the Zoom become obvious. So does the lack of skill for both lawyers and judges. Anyone who has used Zoom for even the basic meeting knows that Zoom meetings are frequently interrupted by internet connectivity problems with one of the participants. That is frustrating and annoying. But should anyone really be surprised by that inefficiency? Even major broadcast networks that are professionals at the use of remote technologies fail all too often when connections to significant guests or reports fall into the traps of Zoom—it is far worse for most lawyers.

Many lawyers who do not know how to screen share documents. Most hosts stumble when they try to grant the ability to screen share. Video images of participants are often of poor quality, contain sound that is nearly inaudible, and inevitably have background distractions and noise that interrupt concentration. Any lawyer or client who has had more than one Zoom hearing has experienced most, if not all of those deficiencies and inefficiencies. Some caused by the Zoom—Some caused by operator error. All must be addressed immediately by the Digital Trial Lawyer. There is no time to wait for an IT professional or your digitally savvy kid to solve the problem—the lawyer must do it him or herself.

This is not a problem that can be ignored or something that will simply go away. All courts in the country face, and will continue to face, the need to balance the health necessities, like social distancing, disinfecting hands and surfaces, and face masks versus the need to the legal system, both criminal and civil, functioning. Cases must move forward. Speedy trials are guaranteed to the criminal defendant constitutionally. The result: (1) Extensive use of Zoom in hearings, trials, mediation and arbitration; and (2) Masked and Socially Distant jury trials.

 At Treblaw, we have ensured that every lawyer in our office has sufficient knowledge and skills not only to use all of the new and developing technologies, but also to teach our clients how to use the technologies if that need arises. This provides our clients with a leg up on other parties and witnesses when testifying in deposition, before a judge, an arbitration panel or jury. Zoom is here to stay and our experience in Zoom depositions, hearings, trials, mediation and arbitration make a difference for our clients, every day. We do not wring our hands and wish for times past—we roll up our sleeves and pull out the technology of the future. We must, or like the typewriter, we will no longer be relevant.

Trials, depositions, mediation and arbitration proceedings present a different dynamic in the two-dimensional world of Zoom. It is very difficult and sometimes impossible to see the subtleties of body language of witnesses, judges and opposing parties. The more participants in the hearing, the harder that becomes. Effective trial lawyers have always been able to use body language signals to determine when and where to attack. Juries watch every move in a courtroom throughout the entirety of a trial. If jury trials are ever conducted by Zoom, the trial process will become fundamentally more difficult.

To be sure, the functionality of juries in a courtroom trial right now with social distancing, facial coverings and plexiglass screens is questionable at best. How can the credibility of a witness be judged through a facial covering? Will significant portions of potential jury pools be eliminated because they are “high risk?” How can lawyers consult with clients in a socially distant way without involving or indeed inviting jury observation or consideration of communications that are neither evidence in the case nor intended for jury consideration.

We have taken aggressive steps to take advantage of the technologies that keep cases moving and leveraging our experience to develop an internal platform for client success. What does that look like? We have upgraded all of our computers to handle the load of streaming presentations. We have equipped all of those computes with software and peripheral devices (e.g. microphones, advanced web cameras, and large screens) which can be set up in our client’s homes, in our offices and at our homes to deliver the platform for success without regard to restrictions that may be in place.

We have a dedicated Zoom hearing room in our offices. This room is equipped to provide our lawyers the best possible support, from a technology and privacy standpoint, to represent our clients over Zoom. This hearing room is equipped with a computer chosen after careful research into the technical specifications required to run the software and applications that could be required in a digital trial. We also added several large, top-of-the-line screens not only to allow us to see each participant with sufficient detail to see their reactions and other non-verbal cues during the presentation of evidence but also so that documents and other evidence are as clear as if they are were handed in paper form to a witness. Finally, we have paired the computer and screens with sophisticated microphones, in ear monitors, and web cameras to provide the highest quality sound and pictures to that judges, lawyers and witnesses can clearly hear the tone of our voices, see the expression on our faces, and can see the non-verbal communication which is occurring—the closest thing to an in-person interaction we can create.

Zoom isn’t all bad. Indeed, there are many positive impacts of Zoom for the future of trial practice. Many processes that have previously required in person court appearance no longer will. Courts that have required in person appearances for status conferences and arguments regarding hearings can move all of those proceedings onto Zoom smoothly and efficiently. That process will save clients money and result in significant savings in judicial resources. Hopefully, we will never go back to the old days of many in person court appearances—we’ll only appear when in person appearances are necessary for the efficient and fair administration of justice—trials.

There are even some perks for lawyers in the world of the Digital Trial Lawyer. All of our lawyers are fond of the ability to wear comfortable clothes, from the waist down, sometimes even shorts and flip-flops, in digital court appearances and other Zoom presentations because no person can see you from the waist down on Zoom. A comfortable lawyer is an effective lawyer.

The challenges faced by lawyers and clients in the dispute resolution post-COVID are indeed significant. Make sure you hire a Digital Trial Lawyer. Ask these questions before hiring your lawyer:

1. Does the lawyer have sufficient technological literacy to present your case to a judge or jury digitally?
2. Does your lawyer have the right technology (i.e. computers, cameras, microphones, monitors and screens) to effectively present your case?
3. Can that lawyer troubleshoot technical issues themselves, in the middle of a proceeding, or do they have to call an IT professional or even their children to help?

If the lawyer you are considering does not have sufficient answers to all of these questions, find a different lawyer—or simply call us.