How are lawyers adapting to virtual settings and what are the secrets to successful video appearances? It comes down to old-fashioned prep work.
“I have been pretty impressed with Zoom appearances,” says Gary Gottlieb of Gottlieb Law Firm, a family law, divorce and child protection lawyer in Toronto. “I would give Zoom court a B+. It’s great because you can see everyone close up — they are right in front of you, whereas in a courtroom, you have everyone in your peripheral vision, and the judge is usually sitting quite far away.”
However, you can’t read body language and litigators lose the ability to pick up on subtle non-verbal cues from other lawyers and judges. “Litigators use that information to manage their argument,” Gottlieb adds.
Clients can find Zoom appearances daunting, especially if they’re not in the same location as their counsel.
Jim Wu, an employment law litigator with Forte Law in Surrey, B.C., sees advantages but also challenges to overcome. “In a mediation, I can use the share screen option to great effect by sharing information that has been updated in real time. That feature has greatly assisted the process,” he says. “For discoveries, it’s really helpful for the parties to take a hybrid approach — don’t just concentrate on using Zoom.”
Wu says it’s better to have your client in the room with you, so you can guide their attention when referring to documents. “It is more effective than when lawyer and client are in different locations on Zoom — they don’t always know what document to look at,” he says. “When doing a discovery, there was an incident where the person I was deposing was glancing at another individual, and I called the person on it — if the lawyer on the other end had the client in the same room, those sorts of awkward situations could be avoided.”
Preparation is critical
“I tell clients they need to look right at the camera and speak very loudly,” Wu explains. “We’ve done discoveries where interpreters are involved, and I remind my clients when answering the question to make sure they speak to the camera — don’t tell the answer to the interpreter because they aren’t the one asking the question. They need to effectively answer the question in a way that shows respect to the lawyer asking because you are looking at them.”
Since discoveries are transcribed, it’s important to verbalize for the record what the document you’re sharing over a screen is because, ultimately, that is what will be captured. Wu advises having printed copies of documents you may need to refer to and have regular contact and ongoing discussion with opposing counsel in a discovery meeting.
Do a test run
Before any appearance, make sure you have good equipment and lighting.
“You need a decent camera, so you don’t look grainy, and people can see your mouth move. It’s all about presentation,” says Gottlieb, noting most lawyers wear business attire as they are not required to gown up for Zoom court appearances.
In his test runs with clients, Nainesh Kotak of Kotak Personal Injury Law in Toronto explains who his client will see on their screen and how everyone can see their reaction.
“The idea is to put them at ease with the virtual process. My advice is to do that well in advance — take them step-by-step through what to expect so they don’t have any surprises,” he says. “I give my clients my cell number because they may have WiFi issues or get knocked out of the meeting. That way, we can communicate in case there are any issues.”
Kotak, who is also vice-chair of the Long-Term Disability Section of the Ontario Trial Lawyers Association, says he initially had concerns about whether he would be able to connect with clients well enough to get instructions and properly connect with them on a virtual platform.
“I found things have been going as smoothly as it would in person — it just takes extra preparation time with clients in advance,” he says. It’s over and above what he would normally do, because there is less time to think on the fly or take a client aside for a chat before going in. “Once you put the client at ease and take the extra time, things run very smoothly.”
Have a practice session several weeks before the mediation, Kotak suggests, and on the day of, have another Zoom session to make sure the client’s technology is working. Then remind them to log in 10 minutes before the call.
Most of Kotak’s long-term disability clients have some form of impairment and are anxious even to leave their homes. “They wouldn’t sleep the night before and be apprehensive about coming into the court — this way, they are making important decisions from the comfort of their own home and can be more comfortable with the process and decisions that they make,” he says.
Is virtual here to stay?
“Judges and lawyers all want to get back to court. I have heard judges say they wish they could be back,” says Gottlieb. “The last presentation in which Superior Court judges participated it was their view that settlement conferences and conferences in general in family law worked better when the parties were in person. I think that speaks to the ability to negotiate in real time.”
Post-pandemic, Kotak says he would like to continue mediations virtually, whereas his preference for discoveries would be in person. “I think it will be the way of the future because it does save everyone costs, especially in mediation.”