At this point we have heard enough about Zoom — from visiting relatives and friends who may be at risk or in quarantine, attending funerals and graduations, to doing schoolwork. But did you ever think your “day in court” would take place over a Zoom session?
Faced with a backlog of cases, staffing shortages, and remaining safety issues involving COVID-19, Maine courts have been conducting business regularly over the Zoom and Google Meets platforms for many types of proceedings. Hearings (or trials) involving the parties and/or witnesses testifying are also occurring by Zoom in family law proceedings.
Having your day in court over Zoom instead of appearing in court face to face before a judge or magistrate, and just a short distance away from the other party in the proceeding is a much different experience for most litigants. Many attorneys have arranged spaces in their offices to conduct Zoom proceedings that resemble the professional atmosphere of a courtroom. Appearing in a setting with an appropriate backdrop, proper lighting, strong connectivity and decent sound quality are simple things that one can do to make a positive first impression during a Zoom hearing.
While it is true that the court will not likely see people’s shoes, it is still important to dress with the appropriate attire — at least from the socks up! Not only does dressing for the occasion help people recognize the significance of the event and help to maintain the proper decorum, but it is also part of the court rules. The Maine Judicial Branch has posted some helpful hints on its website entitled “Remote Video Conference Best Practices & Tips” to help litigants. https://courts.maine.gov/courts/remote/remote-best-practices.pdf
Preparation for a Zoom hearing is a bit different. When trials take place at the courthouse, the parties or attorneys, if they are represented, typically bring the exhibits with them to offer to the court during the hearing, after having exchanged them in advance of the hearing with the other side. Zoom trials require that the litigants file the exhibits well in advance of the hearing so that the court will have them for use during the hearing. Exhibits which may consist of items such as tax records, pay stubs, photographs, or printouts of text messages and emails are often presented to the witness during his or her testimony during the hearing by the attorney who calls the witness to testify. Often times the opposing attorney will present exhibits to the witness during their cross-examination. This process of cross examining a witness is much different when it occurs over Zoom. In a court room the attorney will typically approach the witness and physically stand nearby the witness perhaps pointing to a particular item of attention. This can be intimidating for witnesses, although it is not the intended purpose. In fact, it is anticipated that most parties and witnesses if surveyed would say that it is much less stressful appearing in their attorney’s office, or at the office of the attorney where they were asked to testify, than it would be appearing in a courtroom with uniformed court officers, and the other side appearing nearby in person. It probably also helps that they are sitting comfortably at a table next to their attorney, as opposed to in a courtroom when the party generally has to sit at the witness stand — across the room from the tables where the party sits during the proceeding.
While Zoom trials have been helpful in keeping cases processing through the court system, and allow litigants to achieve resolution of their disputes, they have their shortcomings. Part of the judge’s job as factfinder is to make credibility determinations about the parties and witnesses’ testimony. Judges observe eye contact, mannerisms, expressions, body language and can observe their reactions and behavior during other testimony in the courtroom. This can be much more difficult when the judge is only seeing a square on the screen, not a person sitting in front of them. Furthermore, the party or witness may only be fully visible on camera when they are testifying. This may help parties become less nervous as they do not feel like they are being watched at all times as they would if in a court room. At times, this may seem a disadvantage to a party who wants the court to see the “full effect” of the adverse side’s behavior or attitude.
On a positive side, Zoom hearings can proceed relatively efficiently. There may be the occasional pause for someone with a Wi-Fi connection issue or sound interference, but the flow of testimony and the admission of evidence seems to be at a faster pace. Litigants are instructed to mute their microphones unless they are speaking. This may lead to fewer objections or require attorneys to be very quick to hit the unmute button to speak.
It is preferable to be in the same physical location as your attorney when possible, during the Zoom hearing, as this will allow for easier attorney-client communications during the proceeding. However, the same rules that apply in a courtroom as to when an attorney may speak with his or her client or a witness also apply during a Zoom proceeding. The enforceability of maintaining these rules by the court may be challenging, particularly when parties are representing themselves and are most often unfamiliar with the rules. For instance, when a proceeding starts a sequestration order generally is put in place forbidding the parties and witnesses to discuss what takes place during the proceeding in their court room until the witness has testified. This is to prevent a witness’ testimony from being tainted by what he or she hears from others. Further, attorneys may not speak with their clients while they are on the witness stand whether in the courthouse or during a Zoom proceeding.
The pandemic has changed how courts do business in many respects. Zoom proceedings are likely to continue to be used in many situations, such as when there are geographical challenges to getting parties to court.
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