Courts are returning to normal operation as the COVID-19 pandemic abates, but videoconference proceedings are here to stay, and lawyers have an ethical responsibility to master the technology.
That’s one message a panel of state and federal judges delivered at a June 10 “2021 Masters Seminar on Ethics” sponsored by the Committee on Professional Ethics and the Continuing Legal Education Committee.
“I’ve said this many times,” said Magistrate Judge Anthony Porcelli of the U.S. District Court, Middle District of Florida. “I think now, you not only have to be Clarence Darrow, but you’ve also got to be Bill Gates and Martin Scorsese.”
Joining Judge Porcelli on the panel were Ninth Judicial Circuit Judge Gisela Laurent; U.S. Bankruptcy Judge Mindy Mora of the Southern District of Florida; Magistrate Judge Bruce Reinhart of the U.S. District Court, Southern District of Florida; Ninth Judicial Circuit Judge Kevin Weiss; and Orange County Judge Amy Carter.
The session was moderated by Professional Ethics Committee member Robert Borr, litigation counsel with Irvin & Irvin. The judges kicked off the session describing some of their most challenging remote proceedings.
Judge Mora recalled recessing a hearing to give a witness — a banker in a pink hoodie and tie-dyed T-shirt — time to dress appropriately.
“I took a moment to talk about how the rules of decorum still apply,” Judge Mora said. “I had one witness who took the call standing in front of a Whole Foods supermarket, because there was better internet connection there.”
A witness logged into Judge Laurent’s courtroom while seated in a public restroom stall.
“Fortunately, you could not see the lower half,” Judge Laurent said. “It is distracting to the courtroom, and it does undermine the seriousness of the proceeding.”
The judges said they were frustrated by witnesses who delay or postpone proceedings because of a poor internet connection.
Used properly, remote technology can enhance a presentation, the judges said. Judge Porcelli said witnesses can be easier to assess and evidence easier to inspect.
“These are all things that are going to impact your effectiveness when you’re making your arguments,” he said. “The use of the shared screen is very effective in demonstrating documents.”
But remote technology can also cause setbacks.
Judge Carter said one attorney stopped presenting evidence after struggling with the format.
“The client was not familiar with the exhibits, and the lawyer was not in the room with the client, and the lawyer got frustrated and stopped entering the exhibits,” she said.
And remote technology sometimes raises trust issues, the judges said.
Judge Reinhart said he denied an attorney’s request to order the use of a wide-angle lens in a remote deposition to discourage witness coaching.
“If you’re texting your client, telling him what to say, if you have notes on the table that nobody can see, that’s a violation,” Judge Reinhart said. “We’re depending on the ethical sanctity of the lawyers.”
Judge Weiss says he has taken a different approach.
He ordered a remote deposition to be conducted at a court reporter’s office, after a lawyer who suspected cheating terminated an earlier attempt.
“There was some type of control over the room, based on the lack of trust the attorneys had with each other,” he said. “I had to assist them in micro-managing the event.”
There are other solutions, Judge Weiss said.
“If you’re dealing with attorneys that you are concerned are making facial expressions, acting inappropriately, you can require that a camera be placed on both the deponent and the attorney,” he said.
Some lawyers are accidentally revealing privileged information when they attempt to share their screens, the judges warned.
Judge Weiss said that can probably be easily remedied.
“Maybe a suggestion is that you have a separate laptop that you use…for presentations in the court,” he said.
Judge Laurent said remote technology can also bring out the best in lawyers. When an older lawyer was struggling to present remote evidence in her courtroom, a younger opponent volunteered to help, she said.
“I’ve seen the positives,” Judge Laurent said.