Litigating Virtually: Lessons for Succeeding in a New Environment

An overview of the tips and lessons for a successful virtual litigation experience can be seen in this infographic. 

Although many cities and courts are beginning to reopen, virtual litigation remains the primary means of appearing before the court and attending depositions and hearings — and may be here to stay for the foreseeable future. Homes and cars are increasingly standing in for conference rooms and courtrooms as depositions, mediations, hearings and even trials have gone remote. In fact, attorneys from Kramer Levin’s IP group are currently participating in the nation’s first virtual bench trial, and many of the firm’s litigators have participated in telephonic or video court appearances, depositions, and hearings.

There are predictions that as courts become comfortable with litigating virtually, and as clients and practitioners appreciate the cost savings and environmental benefits, this may become a new normal even after the social distancing imperatives of COVID-19 dissipate.

The lessons Kramer Levin’s attorneys have learned over the past few months of virtual litigation fit, broadly, into three categories:

• Choosing a virtual medium or tool, and setting ground rules
• Physical set-up
• Conduct and communication during the event

Choosing a Virtual Medium or Tool, and Setting Ground Rules

The Best Virtual Medium or Tool for Your Event

Videoconferencing has become vastly more popular over the past few months. Just a few months ago, you might have been surprised if a colleague or counsel proposed to “send a Zoom link for the 1 p.m. meeting,” but now many of us are routinely spending the day in Zoom (or its equivalent) meetings, appreciating the importance of visual cues and seeing the individuals you are communicating with as much as hearing their voices. But that does not mean that every virtual litigation event should take place over a videoconference.

Sometimes, simpler is better. Videoconferences require more bandwidth and are less stable than traditional conference calls. They also require preparation (see Section II, below), which might otherwise be unnecessary. Consider saving video for instances when participants’ physical appearance matters or when the ability to observe a participant’s facial expressions is important.

Attorneys should push for video when, for example, they are delivering an argument to the court and want the ability to gauge the judge’s or panel’s reaction. Wherever possible, depositions and evidentiary hearings should include video — both because appearance is critical to credibility determinations and because it can help the court reporter know who is speaking. One Kramer Levin litigator observed that during a court hearing conducted over a conference call, there were “more interruptions than usual from the court reporter, who [may have had] difficulty understanding.” Those interruptions might have been avoided if the court reporter had the benefit of observing the speakers and the technological cues that come with videoconferencing (such as voice-activated highlight or call-out of speaker).

Depositions and evidentiary hearings, as well as other presentations, will require the use of a videoconference interface, especially if there are exhibits. There, look for videoconferencing tools that include screen-sharing technology, which will allow you to direct the court or a witness to specific documents or text. Basic versions of this technology are available on most business-facing videoconferencing software. Some of the court-reporting services can provide more robust document-sharing interfaces.

If document-sharing technology is unavailable, remote depositions can still run smoothly with advance preparation. One Kramer Levin litigator noted that when the number of documents is limited, a useful workaround might be sending hard copies of the exhibits “in a sealed envelope [to] be opened at the start of the deposition.” Another Kramer Levin attorney noted that a court’s technology limitations may also suggest hard copies, rather than videoconferencing, are best for that situation: “Recognize that the judge may not be able to review exhibits easily on his or her personal computer; offering to mail physical copies of certain important exhibits to the court may be helpful.”

Setting Ground Rules

Whatever medium you choose, it is important to set clear ground rules in advance to avoid misunderstandings, disruptions and disputes during the event.

For depositions and hearings, the parties should set clear expectations about how attorneys can communicate with their clients on the day of their testimony. For example, will it be necessary to disable one-to-one chat in Zoom so that the witness cannot communicate with counsel mid-questioning? What about off-camera communications, such as text messages? Will you set up a breakout room? A Kramer Levin bankruptcy litigator noted the importance of emphasizing “to the witness that they should not [consult] any outside sources, i.e., doing background ‘research’ to answer questions as they are asked. [This is] a frustrating and relatively unique aspect of a remote deposition, in which the witness is sitting in front of their computer with full — and unsupervised — access to basically whatever they decide they want to look at.”

Parties should also agree how to handle discussions with the court and how to avoid the risk of ex parte conversation if one side is offline due to technical difficulties.

Physical Set-Up

Setting up your physical space will involve some trial and error. Leave yourself time to experiment with different configurations and set up a test run with a colleague. You will be more effective if the judge, opposing counsel, and witnesses can see and hear you clearly.

Set up your device as close to your wireless router as possible, or better still, use a hard-wired Ethernet connection. Use a speed test at various places in your home to find the best spot.

Looking down or away from the screen can be distracting, particularly if you are the one speaking or questioning the witness. So, if you are going to be looking at a second monitor or physical documents during the call, keep those as close to the camera as possible.

If you have some flexibility, choose a backdrop that minimizes distractions and looks professional. If you can, choose houseplants, bookshelves, or artwork over beds and doors (in case someone unwittingly walks into the room). Remove as much clutter as possible.  

If the best working space you have available puts you up against an unprofessional background, consider using a virtual background, but be aware that the technology is imperfect.

Test your speakers and microphone. If your home office/closet has mostly hard surfaces, consider spreading towels or blankets around the room, off-camera, to absorb sound and avoid echoes.

Put your camera at or slightly above eye level and angled toward your eyes. If you are using a laptop, raise it up using a stack of books or laptop stand. Use an external or wireless keyboard and mouse so you don’t have to reach. Sit about an arm’s length from the camera. The frame should capture your head and shoulders, but not much more. The two most important lighting principles are to avoid backlighting and shadow. Natural light is most flattering, so try to sit with a window in front of you or to the side, but not behind you.

Conduct and Communication During the Event

Communication with Client and Team

In a traditional setting, there is already some distance between you and your adversary and between you and the judge or mediator. But virtual litigation — whether through conference call or videoconference — also separates you from your team and your client. Before the event, make a plan for how you will communicate with them. One Kramer Levin Intellectual Property Attorney noted: “It is important to ensure you coordinate with your team members, in advance of any virtual or telephone hearing, how to communicate during the hearing should an issue arise that requires different team members’ input.” A bankruptcy attorney shared that in preparing for a virtual deposition, he learned it was “important for us to set clear guidelines and strategy before the hearing. It can help to chart out a decision tree: if the witness responds in a certain way, we go down path A; if the witness responds a different way, we go down path B.”

Some videoconference interfaces, including Zoom, have built-in chat functions. It is best to avoid these because it is easy to send a message in the wrong chat or to the wrong recipient accidentally. That said, if used carefully, it can be a helpful tool, particularly if preservation of the chat and notes exchanged therein is not necessary. If you do want to maintain a record of those discussions, recognize that once the session is closed, the notes will be deleted, so you should ensure that the meeting host does not terminate the session before you have an opportunity to copy or screen grab them.

To “pass notes” with colleagues during a litigation event, look for the closest digital equivalent to the usual practice of passing notes on Post-its or notepads, often tossed at the end of the deposition or hearing. Your options will depend on the technology available to you and on your company’s document retention policies. For many, using an instant messaging (IM) interface like Microsoft’s Skype for Business may be practical, but sometimes plain old email is the most efficient.

Email is likely also the best option for communicating with a client during a deposition or hearing, especially if your company’s policy requires maintaining a record of any legal advice or attorney-client communications. If the client’s email or yours has a significant lag, or if the client cannot receive emails on their mobile device, consider using text messaging as an alternative. These messages, unlike IMs, will live on (often briefly) in the cloud on both your and your client’s phones. When the event is over, take screenshots of the exchange and email it to yourself to add to the file.

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In sum, the courts and litigants are fast adopting and adapting technologies that make virtual litigation more convenient and as effective as in-person advocacy. The cost and time savings may portend that many litigation events will permanently move to a virtual environment. As with many aspects of litigation, clear communication with the opponent and understanding how to best utilize the technology will improve the experience for all.