The New Normal
by Brian Loughmiller
Sheltering in place rules and emergency orders from various Courts in Texas have created new challenges for Family Law Attorneys. Procedurally courts are limiting court appearances only to emergencies or matters deemed essential. Substantively orders related to visitation and issues concerning location of exchanges of children to minimize risk of exposure have also been raised. Even if your client’s issue falls within the parameters allowing for an immediate hearing most likely that hearing will be via Zoom or similar video conference method.
Conducting A Zoom Hearing
If you are about to convene a hearing using Zoom recognize that it is incumbent upon you, the attorney, to ensure that you familiarize yourself with the requirements of the specific court regarding submission of exhibits and witnesses that are to be invited into the meeting. Some courts will require submission of exhibits and witness names, phone numbers and email addresses at least twenty-four hours preceding the hearing. In at least two hearings that I have participated in, the Court required this information no later than 12:00 p.m. the day before the hearing regardless of the time that the hearing is scheduled to begin. The impact of not following these guidelines could include the refusal to admit exhibits that are necessary for your client’s case or disallowing an important witness.
Most Courts also impose time restrictions for hearings even when conducted via Zoom. Unnecessary delay can occur if you are familiar with offering exhibits electronically. To aid in a smooth transition from the witness to an exhibit, I would encourage you to utilize an additional monitor with your laptop with your exhibits already marked and opened on the additional monitor. This will allow you to easily flow from the main screen with your witness to the monitor with your exhibits ready to be shared for the witness, the judge and the court reporter.
Making timely objections may also pose challenges that have implications both to the hearing and to preserving the record in the event of an appeal. A good practice in “the new normal” is to request the Judge prior to the start of the hearing to instruct all of the witnesses to immediately stop talking if there is an indication that an attorney is making an objection whether that indication is verbal or through some prearranged visual sign such as a raised hand that can be seen by both the witness and the judge.
Client Preparation and Appearance
Another challenge in a hearing via Zoom is maintaining the formality of the Court process with your client while they participate from the comfort of their home. Your client and you as the attorney should dress as though you are appearing in person. Your client should be instructed to only speak when testifying or when requested by the Court. In a recent hearing a client continued to interject and respond to questions pertaining to a witness even though the questions from the judge were addressed to the attorneys and not the parties. It became apparent that the lack of formality in the client’s home setting created an atmosphere where the client felt she could openly engage, rather than being in a formal court room process or proceeding.
Finally, if your client is joining the Zoom hearing from their home and you, the attorney, are joining from your home how do you interact with your client during the hearing while another witness is testifying? Limitations will be in place to ensure that you are not coaching your client when your client is on the stand including specific rules against using smart phones or other “off camera” methods of communication.
However, that interaction is often necessary when an adverse witness is testifying. Inquire of the Court in advance the allowed method of client interaction if there are no clear rules published on client communications while witnesses are testifying during a hearing. If your communication is going to be via email on a separate device, ensure that it is allowed, and that attorney/client privilege will not be invaded through a request by opposing counsel or the court for access to the emails under the guise of ensuring compliance.
Zoom, Skype or other electronically managed court appearances are “the new normal” during COVID 19. If you have not experienced a Zoom hearing, take time to practice with others in your office. Just like in live courtroom appearance; organization and preparation will lead to greater chance of success in conducting your hearing electronically.