The video of the proceedings has made mainstream media outlets all over the world, providing some much-needed respite for working professionals and non-lawyers alike in the wake of almost 12 months of upended daily practices.

For those working in litigation, however, the video has offered more than just a laugh – there are key lessons emerging for those navigating online court processes, McCabe Curwood lawyers Gidon Kangisser and Samantha Beattie said.

Adaptability and simple checks

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While the obvious lesson emerging from the viral video is to ensure you are not in any danger of using inappropriate filters during work, the pair reflected, the foremost teaching for litigators from the video is the need for adaptability.

“The old adage ‘fail to plan, plan to fail’ rings true for preparing for a virtual hearing. Planning and preparing for technical failures or errors should be part of any litigator’s court preparation in 2021. With many practitioners working from home, we can no longer solely rely on in-house IT assistance,” the pair espoused.

“This is especially the case when issues arise mid-court session and require a timely resolution. Accordingly, it is incumbent upon practitioners to obtain a basic level understanding of how to operate the software they are using.”

Mr Kangisser and Ms Beattie outlined a series of dos and don’ts for litigators: “Test your microphone, speakers and camera before any appearance; learn how to mute and unmute yourself and ensure you do so in the appropriate circumstances (this tip comes in light of ‘You’re on mute’ being one of the most popular phrases of 2020!); be wary of notifications appearing on any shared screen when using Zoom; and, where possible, have someone on hand who may be able to assist with basic technical problems – this is especially the case if practitioners do not have a basic level understanding of how to operate the software they are using.

“Don’t forget to unmute/mute yourself; don’t forget that others are looking at both you and your background – your presentation in an online hearing should be no less formal than in a physical court room; don’t facilitate distractions – if more than one computer is in the room, ensure the other computer’s speakers are turned off to reduce noise feedback.

“Don’t overlook distractions such as the sound of your scroll dial on your mouse or the noises made by your keyboard (this is especially pertinent for litigators using e-briefs in court); and don’t allow yourself to get flustered… this is especially the case when the issues arise mid-court session! 

“Comically (and much to his credit), even Mr Ponton was ‘prepared to go forward’ with using the cat filter as he argued the case for the State of Texas. The same thought process needs to be adopted for Australian litigators in the face of IT issues amid virtual hearings.”

Why such reminders are critical

These dos and don’ts outlined by the pair might strike many as obvious, but – as demonstrated last week – there is no substitute for vigilance when appearing before the courts.

Moreover, Mr Kangisser and Ms Beattie added, advocacy is, “in essence, the art of persuasion”.

“There is a suite of elements which render a person persuasive, including the structure of their argument, their delivery, and their physical presence, to name a few. There is also something to be said about the impact of the physical courtroom on practitioners and witnesses alike,” they argued.

“Many of these factors have been subdued by the use of virtual hearings. Accordingly, litigators need to reconsider how they approach advocacy in an online environment. Ring lights, high-resolution cameras, quality microphones and stylised backdrops are no longer relegated to the realm of YouTubers and celebrities. They are essential tools in advocacy.

“Beyond improving their general IT knowledge, litigators will likely need to rethink how they approach advocacy, as many of the effective methods of persuasion in physical courts fail to adequately translate into the online environment.”

Mounting challenges and looming opportunities

Turning their attention to the post-pandemic marketplace, Mr Kangisser and Ms Beattie said that the art of persuasion will require a new chapter, with litigators and advocates to be challenged to thrive in circumstances that are substantially different to pre-pandemic conditions – including, they noted, in the perception of body language and in the effective use of translators and interpreters.

“We have been, and will continue to be, tested on how to recreate the theatrical magic of a physical courtroom, such as during cross-examination. How can we tell whether the cross-examination of John Smith has him shaking in his boots when he is sitting in front of a computer monitor wearing shorts and sandals?” they said.

“Our dependency on technology will no doubt be challenged. Technology is not bulletproof. From internet connectivity issues to servers being overwhelmed, litigators will not only be challenged to ensure virtual hearings are conducted seamlessly, but that they also manage those 21st-century pressures with the ever-existing stress of litigation.

“Also, as we increase our dependency on technology through virtual hearings, there will be a greater need, and cost, for cyber security. Litigators and their virtual hearing providers will need to be more alive and responsive to the ever-increasing risk of cyber issues.”

Conversely, litigators should also look at the “new normal” as a chance to better streamline processes and serve clients in a more modern fashion, Mr Kangisser and Ms Beattie suggested.

“With the availability of virtual hearings, we could see the more efficient and quicker allocation of hearing dates. Litigators should be able to obtain the parties’ and witnesses’ mutually available hearing dates with less difficulty, as the physical presence of witnesses, who may be required to travel to attend a hearing, would not be necessary. This will reduce costs and time for all,” they explained.

Any litigator, the pair continued, will appreciate the “sheer volume” of documents that are prepared for hearings.

“The beauty of technology will enable participants to refer quickly to page 18231, line E of the court book, through a screen share function, without requiring litigators to comb through volumes of physical bundles or have a party run from an office with a printed copy of a missing document. The increased use of electronic bundles will reduce the cost of printing and related administrative costs,” they concluded.