COVID-19 has created the potential for a slew of problems related to holding hearing and depositions on video conference streaming platforms, such as Zoom. The recent high-stakes Zoom hearing for the case between Gov. John Bel Edwards and Attorney General Jeff Landry over the state’s Coronavirus restrictions is a case in point. Members of the public crashed the hearing and wreaked havoc.
While up to 300 individuals were allowed to attend virtually, only attorneys were supposed to have the ability to speak. But soon unidentified individuals and members of the public repeatedly interrupted the proceedings to weigh in, going as far as claiming the judge presiding over the case had been “bought off” or was “very biased,” while dogs barked and other noises were heard in the background.
The resulting debacle exasperated the judge and derailed focus from the critical legal case at the center of the hearing. It also clearly reveals the stakes of Zoom hearings and depositions.
Opportunities for confusion, a lack of appropriate decorum and even malfeasance in Zoom settings are significantly increased. Outside of the gravity of the courtroom, witnesses, attorneys and even judges taking part in Zoom proceedings may become unmoored from the standards that have upheld the legal professions for centuries.
Despite the opportunities for problems, there are ways to minimize disruptions. Here’s how you can navigate the changes that Zoom has brought to hearings and depositions.
Prepare for Video Recordings in Zoom Depositions
Video depositions have been used for years. But simply because depositions on Zoom can be recorded does not mean that attorneys can use the recordings carte blanche. Videographers for court depositions function in the same way as court reporters and give official notice of the video deposition. When this occurs, all parties understand and recognize that the deposition may be used in the trial.
While using recorded Zoom depositions is largely new legal territory, best practice is to notify opposing counsel in advance that you plan to use the videoconference feed as your audio-visual recording, and then to note that stipulation on the record. If you don’t notify counsel in advance, you run the risk that the attorney may balk at having the Zoom testimony recorded and refuse to have the witness deposed, causing delays for your case.
You also want to ensure all parties, including your court reporter, have access to the video conferencing software and high-speed internet. And you’ll want to conduct a test of the technology you’ll be using at least one day prior to the deposition. Calling into the conference by phone rather than using your computer’s microphone will capture better audio.
Establish Clear Witness Expectations for Virtual Testimonies
When witnesses are in a courtroom or law office with all their trappings — a court recorder, attorneys in suits, judges on the bench in their robes — it is clearly a serious matter. But when witnesses are deposed or appear in Zoom hearings, the TV-like nature of it and the fact that they are in their own home can lower the stakes and cause them to take the proceedings less seriously.
That opens the door for them to potentially claim confusion or uncertainty about being under oath or the consequences of perjury. To counter this, make it abundantly clear to them that even though it is a Zoom deposition, they are under oath just as they would be in a court of law and that the threat of perjury remains for failure to adhere to the truth in their testimony.
One of the major drawbacks of Zoom depositions is the inability to control exhibits physically during it. You won’t, for example, be able to hand witnesses a document during the deposition and ask them to circle a key part of it. Instead, you’ll need to either send exhibits ahead of time or provide them electronically during the deposition. Zoom’s screen share option can allow you to virtually show the witness documents during the depositions and gives you some ability to control the exhibits and have witnesses interact with them. Make sure that witnesses are clear about the documents and what you are asking of them to avoid any possibility of them claiming confusion in the future.
Adhere to Expectations of Decorum in Zoom Proceedings
As the many news stories of inappropriate behavior on Zoom reveal, the seemingly-intimate nature of Zoom can remove some of our normal social barriers.
But in a courtroom setting, maintaining decorum is paramount. For trial attorneys, not adhering to traditional standards of decorum can go beyond making a poor impression on your colleagues and clients — it can result in damaging your standing with the judge and even a contempt charge.
You want to ensure that every element of your demeanor — from your attire to your choice of location — indicate your level of professionalism and respect. Don’t dress down or participate in a Zoom hearing from your car or bedroom. Make sure that your surroundings are professional and appropriate. Conduct your Zoom hearing from your firm’s conference room using a podium or in your office with your diplomas and license in the background. Or take advantage of Zoom’s option for virtual backgrounds and have a legal library or other appropriate space behind you.
Following instructions may seem simple, but as we all know, in the world of Zoom, it can be easy to accidentally forget to mute yourself or to do other things that could be damaging to your case. Make sure that you are conscientious about what you say during any Zoom session, even if you believe you’re muted. But you also want to make sure that when you are supposed to be speaking, you are unmuted. Perhaps nothing is more frustrating to others on a Zoom call than having someone speaking at great length while on mute.
Just like witnesses may view Zoom proceedings with less gravitas, attorneys are at risk of this too. But letting down your guard and operating with less decorum than normal has the potential to damage your case. These expectations of decorum may not seem critical, but adhering to them even during Zoom proceedings gives credence to the gravity of the process and provides the presiding judges a reassuring sense that you are committed to upholding the standards and expectations of the courtroom setting, even in virtual environments.