Zooming into a new world of litigation

Welcome to the new era of looking good from the waist up. Has anybody heard the urban myth story of the Los Angeles Superior Court judge who demands his Zoom participants on the morning calendar to stand up on camera? How many of us unsuspected "video check-ins" would get caught in our favorite pair of alma mater sweatpants or shorts? Jeffrey Toobin could have faced some serious prison time.

 Gone are the days when suit pants would wear out before the jacket, now the jacket goes first with suit pants being gratuitous in the Zoom world. No more getting up at 5 am for an 8:30 status conference downtown or making sure you have gas or a charge for the traffic jammed commute. Massive hours are saved for our clients, and our time can be used more productively than sitting bumper to bumper on the 405.

Zoom absolutely has positive offerings on many fronts, the first eliminating proximity and location issues completely. For basic status conferences or simple matters, I really don't see much of a downside to appearing by video. Awkward audio glitches aside, clerks and judges appear to have accepted and embraced the new era of video appearances as a norm. For complex motions or pre-trial matters, I still feel that appearing live is required for all the obvious reasons.

As for witnesses at trial, I feel live is always better. However, getting in critical testimony from experts or witnesses can be equally powerful on video if coordinated diligently. I have seen many technical problems wipe out witnesses when the judge gives you limited time to fix the video feed or audio issues or "move on." I always invest in a video company for trial to minimize both the stress and unforeseen technical snafus that always seem to occur.

In-person depositions have always been susceptible to "coaching" through speaking objections, but Zoom depositions have opened a brand-new bag of potential problems. With the defending lawyer often being off camera in the room alone with the deponent, silent coaching can go unchecked. Simple things like pointing to a document passage or giving the kill signal to stop talking can't be seen. I can honestly say I have never had an issue with this; most of us know our ethics and play by the rules. But in the heat of one critical question, the risk is always there. It would not take much effort to use simple hand signals or pre-prepared cues off-camera.

 Some other potential Zoom deposition problems are the dreaded technical issues that can both break your flow or allow unwanted breaks for coaching opportunities. Also, scrolling through a large number of documents on shared screens is often not wonderful, making depositions with massive documents and exhibits better in person. Another option is sending your pre-marked exhibits to the other side before the deposition for the witness to have in hand. I have also used an exhibit tech during depositions to ensure the best flow.

Finally, here are some common Zoom faux pas that should be avoided whenever possible. The first potential disastrous occurrence that you should always be conscious of is whether you are or are not muted. During a recent Zoom deposition, a lawyer believed he was muted and called his principal mid-depo to explain how their client just blew the case up with his still-going testimony. Lawyer participants on the Zoom deposition were all screaming at him that his audio was still on, but the clueless lawyer kept on rambling negative details out loud until his case imploded. As we say in trial, you can't unring the bell.

Also, fake backgrounds are becoming a little much, the court clerk does not need to see you in fake Aruba to give you a new appearance date. I saw an attorney once who had in his live background a moose head on the wall wrapped in an American flag. Not sure what that stood for, but even the judge commented in response on how all participants should be wary of their backgrounds and treat their appearance like they were inside a court of law. We have all seen the cat face video of the lawyer in court, feeling his pain and embarrassment. I've also seen judges get upset over the absence of ties, instructing those not yet called to appear on video to change if necessary.

The Jetsons have failed on the promise of flying cars, but Covid gave video technology the window to sneak into litigation permanently. Load up on sports coats, or in a year, your suit jackets will no longer match your now-neglected pants.