The county where I do most of my work has been “live” (mostly) since early June 2020.  That presents issues in its own right, but I have avoided the new trend toward “Zoom” proceedings until very recently.  Meanwhile, the legal continuing education community has devoted a lot of time to courses about how “Trial by Zoom” differs from its live equivalent.  I also have traded thoughts with a judge in rural Pennsylvania about his take on this brave new world of remote trial.

First, “Zoom” trial really is different from courtroom experience, in some ways good, most not. There is also change in what I will call “courtroom courtesies.”  I recently had a hearing where the husband issued a notice for my client to appear in court in person with documents he wanted brought to the courtroom.  No problem with that, except the following day he filed a motion saying he was out of state and wanted to appear by videoconference.  I don’t know whether his lawyer thought about it, but the implied message was, “I want my spouse’s butt in the courtroom for this hearing and I want her to bring documents when she arrives.  However, I really can’t get there myself so I would like to appear by video.”

When the hearing came, the big screen was lowered and husband “appeared” on a screen where his face overwhelmed the courtroom.  I can tell you that no one over age 30 looks good when their face is 2 feet wide and 3 feet long.  So there he was, 6 square feet of elderly face.  Husband and I are roughly the same age so I am no one to brag but I can happily report that my face was a mere one-foot square.

People on video cameras seem to have no appreciation for how they look on screen.  Most place the camera as if they are visiting with an otolaryngologist; you can see their sinuses. They also don’t appreciate that ceiling fluorescent lights cast a “Jesus like” pall over their appearance.  If you are Zoom candidate, take two minutes and move the camera on your computer to fix that before the lights come up or accept that you will appear either stupid or annoying.

In my first hearing, husband was in sunny Florida.  Despite his advanced age, he favored a shirt unbuttoned to just above the navel.  Once upon a time both witnesses and jurors were expected to wear “coat and tie for men, Sunday best for women” when appearing in court.  We have come a long way during my time at the bar.  Nevertheless, I still cannot reconcile myself to bare midriff witnesses.  It’s distracting at best, disgusting at worst.  I had remonstrated with my client before the hearing that coffee was not permitted in the courtroom.  But, if you appear by Zoom, coffee is the least of your offenses.  Smoke a cigar?  Down a beer?  If a party mouths off to a judge, what’s the remedy when the offender is sitting in his kitchen 1,000 miles away?

In my second Zoom hearing, we were all on camera because of the weather.  It started okay, although my worthy opponent was overwhelmed by the “aura” of the un-curtained window behind her desk chair.  The lawyers were invited to make their pitches and then the clients were invited to amplify and correct what the lawyers said.  If you are invited to such a proceeding, realize that the camera is never “off.”  In a courtroom, eyes have a lot of acreage to take in. Judges tend to focus on the witness in the “box”.  On Zoom, the lawyers, the clients and the jurist are all inside a 3×3 inch Hollywood Squares on the computer screen.  Looks of incredulity or disgust appear an inch away from the visage of the person testifying.  Those expressions can often eclipse what the witness is saying.  Courtroom lawyers are not strangers to hearing a judge say “Counsel your client’s reactions are distracting my ability to focus on the witness.”  That doesn’t happen on Zoom.  It’s not just distracting, it’s annoying and you will pay a price for it.

All drama gets magnified on Zoom.  At one point my client was asked a question.  Her answer was not especially telling.  Husband’s reaction was.  We had already experienced watching him down a cup of coffee in a way that Zoom made quite dramatic.  But when my client began to express her concerns about behaviors related to their child, husband decided it was time to stretch his legs, so we had a close up of his crotch.  In fairness, I don’t think that was intentional but it looked disrespectful.  Then he started to play with the computer camera.  In a way, this was quite effective to interfere with the process, as it’s tough for anyone to focus on what a witness is saying when the next computer screen appears to look like the Mars Rover landing.  You could be presenting the world’s most compelling testimony, but if my client or I decide to adjust the camera or stand up and make another pot of coffee, everyone’s eyes shift to the most unusual activity.

It’s not all bad.  Take the standard courtroom proceeding.  A judge is usually 6-8 feet away from the witnesses and observing them from a 90-degree angle.  On Zoom, it’s all “full frontal” and the opposing party’s visage is a mere inch away on the computer screen from the witness testifying.  In a courtroom, if you are sitting at counsel table your client can act pretty badly before a judge will notice.  On Zoom, your client’s expressions are every bit as apparent as the person testifying.  That can be a real problem for the lawyers, but a true advantage to the jurist.  I have heard fellow attorneys insist that they be with their clients in the same room when the Zoom proceeding occurs.  However, realize that if your client goes off on you at counsel table, the judge has a front row seat and that may be “on mike.”  It also means that you need to bring your best poker face to a Zoom hearing unless you want the court to see your facial views first hand.

So there are many lessons here.  However, in my communication with my friend the judge, we both lamented the fact that Zoom witnesses have no sense of the courtroom and the dignity it is designed to impart.  On the computer screen, the judge is the same size as the counsel and the parties.  There is no walk to the witness box; a walk that many witnesses have told me transformed their testimony because that walk made them realize how important the truth was in court.

Were I putting down odds, Zoom is here to stay.  Yet, it won’t fully replace live court.  Moreover, it has some very real advantages.  My concern is that, unless carefully employed, Zoom will dilute the importance and respect due live courtroom proceedings.  Perhaps the happy medium is for parties to submit video testimony rather than force judges to try to regulate the show “live.”  I see disadvantages in that as well.  But, courts have earned dignity because they demanded it.  In an age of raging incivility, the courthouse needs to remain a place deserving veneration.