In the first of a series of interviews with lawyers from around the world, Brodies’ Johanna Boyd asks Rainbow Willard (Counsel of New York firm Chaffetz Lindsey), an experienced international arbitrator and court advocate for her perspective on the impact of COVID-19 on the American courts.
What is your experience of virtual court rooms since the outbreak of COVID-19?
Nearly every court in the United States has seen its operations impacted. The United States Supreme Court heard oral argument via teleconference for the first time in the Court’s history on 4 May 2020.
In New York federal courts, many judges have updated their rules of practice to provide alternatives to in-person appearances. Some judges already used teleconferences for hearings and they have now expanded this practice significantly.
In New York state courts, particularly those seated in New York City, the switch to virtual proceedings was more complicated. Initially, only “essential” proceedings (none of which were commercial) were handled virtually. State courts outside of New York City are undertaking a phased reopening. New York City courts continue to handle matters virtually.
In federal and state courts, the most significant impact has been on jury trials. The United States Constitution contains provisions that protect the right to jury trials in civil and criminal cases, meaning that they are required in most cases if parties exercise those rights. Courts have yet to resolve how to fairly conduct a jury trial virtually. As a result, jury trials in New York courts have been on hold.
We also have a busy arbitration practice and arbitrators have been willing to conduct hearings virtually. These hearings have gone off without a hitch.
Do you think this is going to result in a permanent change for the way your court system works in the future?
After undergoing a “trial by fire” of audio and video conferencing, courts and arbitrators are observing that virtual proceedings are extremely convenient. It is likely that both are here to stay for many types of proceedings.
However, this experience has been a good lesson that there is no replacement for in-person proceedings in some circumstances. For example, where witness credibility is a key issue, when there are concerns regarding witness sequestration, when a critical piece of evidence cannot be examined virtually and when a jury trial is required.
Do you have any top tips for appearing in a virtual court?
- Be prepared. Get comfortable with the electronic platform. For video, make sure your background is not distracting and make sure the lighting is clear. Do a run-through with a colleague.
- Speak slowly and clearly. Before you begin any argument, make sure everyone can hear you. If you are having connectivity issues, or have left your microphone muted, you want to know immediately, not after you’ve gotten through half your argument.
- Listen closely. Many people have a tendency to zone out as they would when watching television. As an advocate, it’s crucial to stay engaged even when the case is being played out on a screen.
- Read the “room”. This can seem impossible when you’re appearing virtually. You may not be able to see the judge, court personnel, opposing counsel or the opposing party. It will be difficult to gauge reaction – you’ll have to look for contextual cues. Try to learn everything you can about the judge. Speak slowly to permit your judge to interrupt, ask questions and make comments. The interruptions are important information about what your judge may be thinking.
- Know your case and be ready to pivot. If you’re speaking slowly and listening closely, you may get enough contextual cues from your judge to identify points that you should emphasize or downplay. Listen to any questions or comments they make to you or opposing counsel. Be ready to tailor your arguments to ensure the best outcome possible for your client.