Miami Skyline White

Law in the Time of Corona1

By: Ira Cohen, Esquire, Partner, Henkel & Cohen, P.A., Miami
Republished from The Federal Lawyer, November/December 2020

Cellphone Text Transcript from 16/04/20, 0730 hrs.:

“N95 face mask?”
“Affixed.”
“Hands and forearms scrubbed?” “Affirmative.”
“Nitrile gloves?” “Check.”
“PPE?”
“Roger that.”
“What is your heading?”
“GPS Coordinates: United States Latitude: 25.7738889 Longitude: -80.1938889 Time zone: US/Eastern Current time zone offset: UTC/ GMT -4 hours.”
“Check.”
“Final destination?”
“To my law office for a court hearing on Zoom.”

As a member of the so-called Baby Boomer generation, I was raised in a far simpler era of rotary telephones, pinball games, mimeograph machines, small black-and-white televisions, window unit air conditioners, and battery-operated A.M. radios. Movie theatres had one screen. School children were armed with No. 2 pencils, a box of crayons, and a protractor.

We lived in blissful ignorance in a world devoid of PCs, CDs, DVDs, MP3s, cellphones, microwave ovens, Blu-ray, and 8K HD 96-inch-screen televisions. Technological marvels we now take for granted— like mobile phones—were not available until 1983. The World Wide Web did not come into being until 1989.

Courts had no magnetometers inside and no mammoth concrete barriers outside. The judges’ secretaries took shorthand dictation on steno pads, and the court reporters fidgeted with rudimentary machines. The law clerks conducted their legal research combing through dusty old books, with stacked volumes of Shephard’s Citations covering their desks. There were no cameras and no recording equipment.

Little did we know it, but those were comparatively halcyon days—relatively carefree days when we were just Baby Boomers and not Zoomers.

And now, in 2020, amidst the dreaded and dreadful COVID-19 viral crisis, surrounded by disease and inundated by medical information, misinformation, disinformation, and nagging doubts about our national economy and our collective future, we lawyers must rely on some of the technology we have long taken for granted in order to continue to function with even a semblance of normalcy. We attempt to function as professionals and advocates despite many of us being, or having been, ill ourselves or personally acquainted with clients, colleagues, friends, and relatives who have been infected by and/or suffered from the insidious effects of coronavirus.

I know that I am a dinosaur; I readily confess it—destined for eventual extinction. I am certain of that much. A low-tech lawyer from a different time and place. As Exhibit A, I carry real photographs of my children and grandchild in my wallet. Exhibit B: I cannot program a cellphone. Exhibit C: Unless my youngest daughter happens to be home from college, I am very lucky indeed if I can figure out the right buttons on the three remote controls in time for a football game’s opening kickoff.

Thus, I am the last person who should be pontificating about video-hearing technology for court utilization and its related issues. On the flip side of the coin, perhaps, though—just perhaps—my friends and colleagues, I am the right fit for the task. Simply put, if I can be a “Baby Boomer Zoomer,” so can you. As Alexander Pope mused: “Hope springs eternal….”2

Ready or not, the COVID-19 global pandemic may have succeeded in catapulting the legal profession over the ramparts and into the next logical phase of legal practice. The days of live, in-person hearings may be behind us, if not delimited and numbered.

And so, without further ado, as for our legal system and courts, as they say on Broadway, “the show must go on.” Thus, we cobble together what appears to be, at the very least, a functioning legal hearing mechanism. It is a mere glimmer of reality. It is, of course, a simulated legal landscape—an isolated and high-tech simulacrum of the real thing. As if the “Matrix” trilogy’s Morpheus had just offered us all the little blue pills that allow us to immerse ourselves in an electronically created version of the judicial system.

Don’t get me wrong. I still prefer live, in-person hearings and I always will. It is one of the reasons I became a lawyer four decades ago. The looks and sounds of the courthouse, the gleam of the marble floors, and the scent of wood-paneled courtrooms; public speaking; engaging in a spirited discourse on the law; and zealously advocating for your clients. It’s what we thrive on; it’s why many of us became litigators in the first place.

In stark contradistinction, there is something more sterile about a Zoom hearing. More serene. More sedate. Indeed, the decrease of adrenalin is palpable. In some ways, it’s more like a video conference from “The Office.” But I believe (like it or not) that it may well be the wave of the future. And if we counselors at law do not wish to be washed over and roughly cast asunder, then we all need to learn and practice some new swimming strokes.

Zoom, of course, is just one platform that can be employed for video-conferencing a courtroom hearing or, to be sure, an entire motion calendar. There are many platforms and software, such as GoToMeeting, Skype, WebEx, Hangouts, Slack, Meeting, Duo, WhatsApp, and High Five, among others. I am not here to endorse one over another. I am neither a reviewer, nor am I a technical expert. My experience has been with Zoom and Zoom alone. I have no doubt that there are, however, numerous parallels with the other platforms.

Quite apart from that fact, as lawyers, it is not ours to question why or to choose the system. The system is not a matter of personal choice. What is a choice is whether to familiarize ourselves and come to terms with the particular system or software selected by a given court. It is not like picking the plan you like from your cable TV provider.

The video hearings I have observed, or participated in, have been adequate for their purpose, nothing more, nothing less. I suppose that, with time, the courts’ IT specialists will up their game. There are hiccups; that’s to be expected. Allegedly, there are security issues with Zoom. I lack knowledge or information sufficient to form a belief as to such allegations. But we all should be cognizant of the claims.

As a threshold matter, allow me, for your benefit, to express some of the problems and issues that I personally have noted. In addition, I have conducted some of my own research on these issues and am sharing the benefit of my discoveries with you. I’m neither sharing as a technical wonk nor as a high-tech lawyer, I’m sharing just as your colleague and friend, a fellow counselor-at-law trying his best to navigate his way through the brave new world of audiovisual lawyering.

To enter the Matrix, the plug must be inserted into the back of your hard-drive or desktop computer. Just like when Neo was hooked into the Matrix by Tank. Search for the email that you will have received from the court. Click on the link provided to you. You will then be prompted to choose either the audiovisual mode or the audio-only mode. Choose one. If you have selected the “audio only” route, please note the phone number to dial into as well as the associated code, password, and/or any other unique identifier information or number(s). You will be prompted to dial those numbers/letters.

Almost instantaneously, you will be transported to the “Waiting Room,” a nether world between your office and the courtroom. It is an odd place, populated by your adversary and an assortment of other lawyers not of your acquaintance, the totality of which comprise the patch-quilt of the court’s daily motion calendar.

“I’ll wait in this place where the sun never shines,
Wait in this place where the shadows run from themselves.”3

Your brief or lengthy sojourn to the Waiting Room probably mirrors what would transpire outside, and inside, that particular jurist’s courtroom in the real-world courthouse. From what I have seen, the shorter the period of time that you are there, the better.

When your case is called, just make believe you are in a real three-dimensional courtroom and are standing at the lectern or counsel table. Greet and address the court. Note your appearance. Deliver your arguments. Once the judge has ruled (or continued the hearing) and you have thanked the court, depart the Matrix. Oh, and take good care not to forget to sign off/log off Zoom. Do restrain yourself at all times; before you are signed off, do not make faces, roll your eyes, carp about the ruling, or say anything to anyone in your office. Remember: always smile. You’re on Courtroom Camera.

How can I adequately describe the Zoom-hearing experience to you? In the context of a Zoom hearing I attended just the other day, I quickly became attuned to several things. First, I was now looking at fellow lawyers nestled in their inner sanctums; in some cases, I could see their bookcase contents or family photographs. Some desks were virtually paperless; others were seemingly organized chaos; and still others looked more like a hoarder’s garage. One fellow’s wall-clock showed 3:00, though it was only 9:00 a.m. People seemed to me to be more like specimens under a magnifying glass. Nervous habits, nonverbal cues, and improper dress all were there for the viewing. It was rather disconcerting and distracting.

I wondered to myself whether there would be any outlandish situations or grossly inappropriate outfits, such as the ones that had recently made the Florida newspapers (e.g., shirtless lawyers, lawyers by poolside, or lawyers in bed under the covers). Nothing strange, however, transpired on that day.

We were not off to an auspicious start. At the beginning of the hearing, there was an audio problem. As in, there was no sound whatsoever. We could not hear the judge or the other lawyers. Fortunately, there was a chat feature, and several of us quickly chimed in to make this problem known to the court.

The problem was rectified tout de suite, I am happy to say. Another off-putting flaw in the system, at least on this occasion, was that the judge looked more like a hologram than a judge on a television screen; he was superimposed over the flag and state seal behind his chair up on the bench. Thus, at times, parts of his face or upper torso would disappear and be replaced with the flag or the seal, or parts thereof, that were behind him. In some instances, his face would look like a mosaic of different pieces, colors, and designs. At one point, the gold in the seal seemed to be superimposed on the judge’s teeth, making his mouth look like that of a gang member or a cartel associate. Then, he would start to reappear, like a red-shirted Star Trek security officer having transporter problems during the beaming process.

At present, you are still able to choose either the audio-video Zoom experience or the telephone hook-up only (no video on your end) model. With the telephone-only model, you can see the judge and the other lawyers, but they cannot see you. Some folks have suggested that this shows a lack of respect. Consider if you really want the other attorneys, and the judge, just seeing your headshot photo or, worse, just your name. You certainly can make do with attending your hearings like this, but if your calendar, like mine, features many hearings that are long or complicated matters, I think it only makes sense that you and the judge should be able to see each other.

Consequently, if you do not already have a camera built into the monitor of your desktop computer at the office, you will have to buy an add-on camera. Otherwise, you can use a tablet or an iPad that does have a camera function. I suppose, in a last-ditch effort, you could also use your cellphone, but if your eyes are as old and law torn as mine, that portends to be a real strain on your optic nerves.

At least for the foreseeable future, we should, I have read, reasonably anticipate glitches, gaps, mistakes, and omissions from the audio-video remote hearings. Such problems can take, as I understand it, myriad of forms.

There may be audio-related problems. There can be issues with audio feedback, for example. Echoes may arise, to the great frustration and annoyance of all concerned.

You may experience video-related problems. For example, your webcam may not be functioning properly. Or, the judge’s courtroom camera system may not be up to snuff.

A genuine concern is the presence of potential security issues with the software. Zoom has been criticized in the media for one or more such issues. I express no opinion as to the veracity, or severity, thereof. Zoom claims to have created “patches” to fix the issues. I simply mention it to you so you can look into it, if you wish, in order to make an informed judgment.

If your hearing is taking place in another state (e.g., in cases where you are admitted pro hac vice), remember to docket and log on to your computer at the proper time (taking different time zones into consideration). Also, bear time zone differences in mind when scheduling conferences.

Depending on your location, the court’s location, the day of the week, and the time, you may be vexed by lethargic internet connections. This can cause problems during the connection process or during the communication process. In general, computer speeds during the COVID-19 crisis have not been noted for their alacrity.

According to my readings, there are a number of ways in which we can all improve our computer-hearing experiences. For your convenience and ease of recall, allow me to list them for you here:

  • Check to see that you are equipped with high-quality software for video-conferencing.
  • Make sure that your system possesses sufficient bandwidth.
  • Keep your software updated.
  • Keep your hardware updated.
  • Have a good IT service-provider on-call.
  • Use good computer speakers so that the audio is crisp and clear.
  • Locate and remember where the “mute” button is in case it becomes necessary to use it. (If you are “Zooming” from home, be aware of where the kids and the dogs are, and who is running the blender at high speed).
  • If your system is old and outdated, consider buying a new one.
  • Become more conversant with the Zoom system (Google it! Read Zoom’s web materials) and use it to your general advantage.
  • If you enjoy immersing yourself in the remote-hearing arena, consider buying a good headset (headphones) to enhance your audio experience.

As to the last point, there is an informative article that provides some useful tips for dealing with Zoom at https://www.digitaltrends.com/computing/tips-for-using-zoom/. The article discusses, inter alia, how to work within the Zoom world, including how to apply a virtual background; how to create keyboard shortcuts; how to alter (touch up) one’s personal appearance; how to record and transcribe a meeting; how to share a Zoom meeting; and how to schedule a Zoom hearing. Easy as pie.

While we may be loath to admit it, there will no doubt be a fair amount of user error on our part. Warning: we also will seem, on screen, to have put on a few pounds, just as if we were on television; there’s no way around it.

In due course, we will no doubt see webinars popping up, or live CLE sessions, devoted to the perceived Best Practices for Video Conferencing. I do not claim that the practices I have collected here from my own research are the best, but they seem to me to make good sense and to be logical; what is more, they are here and ready for us now, when we really need the aid and assistance.

As it turns out, there is quite a long laundry list of things that we can do to help ourselves and, in so doing, to improve a Zoom-hearing experience. These are matters wholly, or mostly, within our control and/or a matter of personal choice and practice. Always bear firmly in mind: It is a hearing. You are in court. A two-dimensional courtroom, perhaps, but a courtroom, nonetheless. How will you present yourself? Will you exude preparedness and confidence? Or, instead, will you signal that you are lazy, messy, and not taking this seriously? Again, permit me to impart to you a list that I created from my own research:

  • Clothing choices still matter. Dress appropriately for the hearing. This means formal court attire, especially if you will be viewable on screen; it also means no gym clothes, no bathing attire, no nightwear, and no Hawaiian shirts open down to the navel. Going shirtless and/or shoeless around the pool is not an option.
  • Use proper and sufficient office lighting (too little will make a bad, dark impression; too much may cause a glare for the judge).
  • Your background should be an appropriate, business-like setting. Your office is fine. Maybe. If your office is a mess, or you just do not want prying eyes, then consider setting up a virtual background or green screen behind you.
  • Make sure that your hair and/or makeup are appropriately tended to, as may be applicable.
  • Realize that your glasses may cause glare for the judge (if you have contact lenses, wear them if you can).
  • Remember that the camera rolls on; it is always recording. Other lawyers and the judge may be looking at you. They may well Zoom right in on you.
  • Keep your nonverbal cues to a minimum. Do NOT roll your eyes, scratch your head, blow your nose (for that matter, do NOT do anything with your nose), floss your teeth, check or talk on your cellphone, chat with an officemate or your legal assistant, or look at your watch repeatedly. If you are at home, do not talk to your child, play with your parakeet, or eat a breakfast burrito at your desk.
  • Sit up straight in your chair; do not slouch.
  • Do NOT eat; do NOT chew gum.
  • Smile self-confidently.
  • Do NOT sit too close to the screen (as your head-body proportions could make you look like a bobblehead doll).

Is this the wave of the future? Will all hearings one day be remote? I am sure that someday they will be omnipresent. I, for one, do not look forward to that day. Nevertheless, while not presently the norm, they are necessary to keep the wheels of justice rolling on.

Yet, history and experience, and Geoffrey Chaucer’s 14th-century observation, tell us that “time and tide wait for no man.”4 To that old idiom, we may add the word “technology.” In that sense, perhaps Shakespeare’s response is more apropos here: “There is a tide in the affairs of men, Which taken at the flood, leads on to fortune.”5 In plain, modern English, this means that if you have a favorable opportunity to do something, then, do it; you may have a chance to make a real difference, and if you do not act now, you may never have the opportunity again.

That concludes this transmission. Baby Boomer Zoomer signing off. (Screen goes dark; static sizzles….)

“I’m waking up, I feel it in my bones Enough to make my systems blow Welcome to the new age, to the new age Welcome to the new age, to the new age Whoa, oh, oh, oh, oh, whoa, oh, oh, oh, I’m radioactive, radioactive.”6

Endnotes

1With apologies to Gabriel García Márquez, Gabriel García Márquez, Love in the Time of Cholera (A.A. Knopf ed., E. Grossman trans., 1st Am. ed. 1988).
2Alexander Pope, An Essay on Man: Epistle I, III, line 19 (1732).
3Cream, White Room, on Wheels of Fire (Atlantic 1968).
4Geoffrey Chaucer, Prologue to the Clerk’s Tale (1395).
5William Shakespeare, Julius Caesar act 4, sc. 3, ls. 245-48
6Imagine Dragons, Radioactive, on Continued Silence (Interscope 2012).

 

About Henkel & Cohen

Henkel &Cohen, P.A. is a Miami, Florida boutique business litigation law firm whose partners hold the highest AV rating from Martindale-Hubbell®. For additional biographical and contact information, please visit the firm's website at www.miamibusinesslitigators.com.