By Justin Wise
Texas district court judge Emily Miskel has for months offered a reminder to lawyers while delivering lectures on virtual court hearings: check your filters.
"I'm telling you this so if your kid used your iPad this is how to turn it off," Judge Miskel, in the 470th District Court of Collin County, Texas, told Law360 Pulse when discussing what she says to attorneys and other legal professionals. "My kid once [used] my Zoom for her Sunday school and I had pink and purple unicorns on it when I returned to it."
A Texas attorney seems to have neglected that step earlier this month, joining a status hearing with a cat filter superimposing his face and turning a rural county judicial district into a viral sensation. The moment threw a spotlight on what has become a new normal for judges and attorneys amid the coronavirus pandemic: virtual court hearings.
Nearly a year into the pandemic, the environment has provided a fair share of unusual moments, including dogs barking in the background, lawyers appearing shirtless and the sound of a toilet flush during U.S. Supreme Court oral arguments.
Judges told Law360 Pulse that the mishaps underscore some of the adjustments legal professionals are still making in this setting. While the "cat lawyer" episode was a hilarious moment, judges said, maintaining formality and solemnity in proceedings has proved to be a challenge in some cases.
"You have to remind people this is still a court hearing," said Judge Rebecca Burton, in Nevada's Eighth Judicial District Court Family Division. "It carries the same significance as being in a courtroom."
Still, judges say they envision virtual procedures continuing at least to some extent long after the pandemic, as it has led to greater participation among indigent litigants and provided for new and effective ways to move through certain types of proceedings. Here's what judges say the "cat lawyer" episode underlines for attorneys and the courts:
'At Least Put A Tie on'
The ambience of a courtroom is difficult to replicate on video conferencing platforms, forcing judges to occasionally remind attorneys or other parties that they need to conduct themselves appropriately during proceedings. This includes how you're dressed.
A California federal judge last week called out a DLA Piper attorney for his attire, saying, "At least have a tie on." A Florida judge in April also urged attorneys to join remote hearings in an appropriate fashion, noting one male lawyer appeared shirtless and one female attorney appeared in bed.
"I think the biggest thing is having to remind people that you're in court," Stephen Gizzi, a judge on the Superior Court of Solano County, California, and a faculty member at the National Judicial College, an organization that offers training to judges, told Law360 Pulse.
Judge Gizzi said that he developed a set of rules issued to everyone appearing before his court on how to properly act. He noted that he also normally leads proceedings from the bench of the courthouse.
However, many judges are now hearing cases with their home offices as a backdrop. Judge Burton said it has prompted some jurists to place American and state flags behind them in order to reproduce what a courtroom looks like. Others have used fake backdrops, but she noted that just like anything, participants should make sure those backgrounds are suitable for a court hearing.
But when it comes to actual legal arguments, lawyers should realize that all of their skills translate "just fine" to the virtual courtroom, judges say.
"What you'll find is if you talk to lawyers who haven't done any virtual trials they're filled with all of the ways it can't be done," said Judge Miskel, who has conducted more than 200 Zoom trials. "But if you talk to lawyers and judges who have been doing them, they're like, 'I was concerned at first, but it's fine we'll figure it out.'"
This Is the New Normal
Judges who spoke with Law360 Pulse noted that virtual hearings have come with a number of advantages. For example, self-represented and poor litigants are not forced to take a day off work or find childcare in order to make a court appearance. Instead, some can join a hearing during a lunch break.
Judge Miskel also noted that expert witnesses in the future may be able to skip a full-day court appearance and join remotely once their services are needed.
In other areas, the informality of Zoom has proven to be a net positive. Judge Miskel and Judge Gizzi separately noted that domestic violence victims typically are not comfortable speaking in a courtroom. Judge Miskel added that with Zoom, people tend to "speak up."
"If we lose formality and gain facts, that's OK with me," she said.
For these reasons, judges expect remote hearings to be a normal element of their court proceedings in the future. In Judge Burton's district, officials are considering a rule that would make virtual motion hearings the default.
But Judge Burton said she'd prefer evidentiary hearings to continue to take place in person once it's safe to do so. She noted that virtual settings have prompted accusations that parties are being fed answers and that it's also hard to pick up on body language in a remote environment.
'Roll With the Punches'
A remote legal world will regularly engender bizarre moments, whether it's a cat filter or someone testifying while driving.
"We know these things will happen," Judge Roy Ferguson, a jurist in the 394th Judicial District Court of Texas, who was at the center of the "cat lawyer" hearing, said in a recent discussion hosted by the National Center for State Courts. "We just roll with the punches and keep right on going."
Judge Miskel noted that the viral episode "could've happened to anyone," even the most technology proficient. And while it's perhaps led to an increased awareness of Zoom filter settings, some note that the broader takeaway is that this environment is not going away.
Legal professionals, therefore, should take steps to consider how they present themselves, Elisabeth Hutchison, who trains lawyers and law professors on remote presentations, told Law360 Pulse.
Hutchison said she's spent much of the past year teaching legal professionals how to make small but important tweaks to their lighting, onscreen backgrounds and what she calls "webcam posture."
"This is a totally new world for a lot of us. As we're doing it, we're developing norms," said Hutchison, who is the director of admissions at the William S. Richardson School of Law at the University of Hawai'i at Manoa. She's provided trainings through her company Work From Home University LLC.
A little thought about your at-home presentation can go a long way, Hutchison said.
"We are so hyperfocused on what people look like, and we make judgments incredibly quickly," she said. "Who do we like? Who do we trust? The way that I am presenting myself may be as important as what I'm saying."
--Additional reporting by Chris Villani, Dorothy Atkins and Morgan Conley. Editing by Nicole Bleier.
