Four Tips for Litigating Virtually

Judges in state and federal courts generally agree that during COVID times, virtual litigation is the only way to keep the U.S. court system moving forward. And while it’s not ideal to litigate remotely—for example, there’s no guarantee that remote jurors are actually paying attention to the case—it is necessary. It’s unclear when in-person litigation will be an option again, so virtual litigation is likely here to stay (at least for a while).

Although it’s not perfect, there are some positives to virtual litigation. Some jurors, for example, have reported that Zoom makes it easier to see a witness’s face (versus sitting far away from them in a physical courtroom). For the same reason, they also report being able to see evidence or exhibits more clearly.  

Even if you’ve managed to avoid remote litigation thus far, chances are that before long, it will be every litigator’s reality. As with any new endeavor, it’s important to do your homework beforehand and come to the table prepared. Here are some tips that can set you up for success before entering a virtual courtroom.   

Virtual Litigation Considerations

1. Presenting evidence and exhibits:

• You should plan to file any documents or evidence early—at least 5 days ahead of your hearing, though some judges or districts may require that materials be filed even earlier.  
• Spend some time thinking about how you want to present your evidence or exhibits. An app that may be helpful in presenting evidence is Snagit, which allows you to easily cut and paste from documents and zoom in to portions you’d like to display. This can help bring some semblance of traditional courtroom-style exhibits to the virtual courtroom.
• Be sure to check the judge’s or district’s website to see if any preferences or rules are listed. As an example, some judges may have detailed procedures when it comes to presenting evidence. Similarly, some districts may prefer evidence to be shared via email, while others may prefer Dropbox.
• If possible, agree with opposing counsel beforehand on the type of and procedure for exhibits—including uploading and custody (for example, physical exhibits that might require special security handling, such as firearms or drugs, would typically remain in the custody of law enforcement). Make sure you communicate your agreements to the court reporter so everyone is on the same page.
• If you are presenting evidence by referring to the docket number, keep in mind that the judge may not have dual screens and that clicking over to the evidence might be distracting, confusing, or just inconvenient for the court to manage when a Zoom window is also open. Consider instead screen-sharing to present the evidence. It’s easy and will make the evidence-sharing process smoother for everyone. Just be sure to get plenty of practice in beforehand.

2. Navigating breakout rooms and waiting rooms:

Treat breakout rooms and waiting rooms like you would the real thing. For example, while sitting in a virtual waiting room with opposing counsel while you wait for the judge to take your case, consider using that time to discuss the case just as you would in the courthouse hallway. Making the most of your time is key, virtual or not. Also be aware that video or audio recording could continue during breaks or in breakout rooms, so don’t get too comfortable.

3. Juggling rules specific to jurisdiction or judge:

Be sure to take time to research the rules of your jurisdiction or judge ahead of time, such as the swearing in of witnesses. Some court reporters (depending on location) will not swear in a witness if they cannot do so in person. Similarly, check your judge’s website to see if he or she has any special procedures for Zoom hearings. Different judges may have preferences for things such as mute procedures, presenting evidence, and recording rules. For example, the U.S. District Court for the Northern District of California prohibits the recording of court proceedings held by video or teleconference.

4. Making sure the transcriptionist knows who is speaking:

It may seem basic, but it’s easy to forget in the middle of a heated trial: it’s exceedingly important to identify yourself before speaking so that there is no confusion on the record. Also be sure to speak slowly in case there is some lag in the audio—this will help the stenographer get an accurate transcript.

While virtual court proceedings are inconvenient and require more planning, by the time you’ve had your third or fourth remote appearance, these elements will start to become second nature.