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Texas Disaster Legal Help Podcast
Texas Disaster Legal Help Podcast
Remote Advocacy: The New Normal
Tune in to hear tips on how to prep a client for a remote hearing, handling exhibits during the trial, and how to look your best at virtual hearings. Guest Speakers: Heather Keegan, Litigator Director at Lone Star Legal Aid.
Guest Speakers: Heather Keegan, Litigator Director at Lone Star Legal Aid.
Visit our website at https://texasdisasterlegalhelp.org/
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Remote Advocacy Transcript
Speaker: Heather Keegan (Lone Star Legal Aid)
(Recorded Jan 29, 2021)
0:03
hello there folks uh
00:07
welcome this uh another edition of our
00:09
podcast here
00:10
uh it's been a while since you recorded
00:12
this actually for those of us for those
00:14
of you viewing we've been awhile since
00:15
they got it
00:15
together because it's in the beginning
00:16
of the new year for us the calendar year
00:18
so excuse me a little bit rusty but uh
00:20
it should be okay and ready to go you
00:22
can have a great topic today to
00:23
to listen to listen to uh once again my
00:27
name is pablo almaguer i'm an attorney at
00:28
Texas Riogrande legal aid
00:30
and i'm here with a joint project with
00:32
uh legal aid of northwest texas and
00:34
lone star legal aid we've got belinda
00:35
martinez from lone star legal aid and we've
00:37
got stuart campbell
00:38
from legal aid of northwest texas so
00:40
we're joining us here and then belinda
00:42
will introduce the speaker in a few
00:43
minutes
00:44
as a reminder the website you want to go
00:46
to uh
00:47
Belinda correct if i'm wrong again it's
00:50
texasdisasterlegalhelp.org
00:51
is that right okay because i know it's
00:53
changed a couple of times
00:55
okay yes the website is
01:06
texasdisasterlegalhelp.org
01:07
perfect i know it's changed a couple of
01:09
times that's good for you all
01:10
you can go over there and check out the
01:12
not only of course if you listen to this
01:13
on another site you can go to that site
01:16
to check out the resources we have for
01:18
you so what is this project
01:20
we are a coordinated project between
01:21
legal aid of northwest texas lone star
01:23
Legal aid of course trla where i'm from
01:26
and it's aiming improving access to
01:27
justice for those affected by disasters
01:29
our project allows both disaster
01:31
survivors and pro bono attorneys to
01:32
access critical resources in one place
01:35
while at the same time making it easier
01:36
to connect disaster survivors needing
01:38
legal help with volunteer
01:40
attorneys willing to provide it in this
01:43
way the project
01:44
team hopes to increase the number of
01:46
disaster survivor clients who receive
01:47
high quality legal assistance as they
01:49
continue to navigate the recovery
01:50
process
01:51
after a disaster and provide the support
01:53
and mentorship
01:54
pro bono attorneys need to achieve that
01:56
success
01:57
so without any further delay here let's
01:59
go ahead and start belinda you can
02:01
introduce our speaker and the topic
02:02
should be talking about
02:05
thank you pablo today's topic is remote
02:08
advocacy
02:09
as you know thanks to the pandemic most
02:11
hearings are
02:12
on zoom now and so we have a guest
02:15
speaker to take you through some of the
02:17
pro tips
02:17
for your zoom hearings our guest is
02:20
heather keegan
02:22
heather keegan joined lone star legal aid
02:23
as a volunteer in early 2009
02:26
she started as a staff attorney in the
02:27
lsla home protection unit in may 2009
02:31
on the same day that she successfully
02:32
defended a mortgage foreclosure suit in
02:34
a harris county district court
02:36
good timing there, she was a staff
02:38
attorney in the lsa
02:40
conroe branch office from 2010 to 2014
02:43
then the managing attorney of that
02:44
office from 2014 to 2019
02:48
she is currently a litigation director
02:49
for lsla's justice for crime survivors
02:52
project
02:52
she has handled a wide variety of cases
02:54
at the trial and appellate level
02:55
including housing consumer family and
02:57
probate
02:58
matters she is a 2007 graduate of new
03:01
york university school of law and served
03:03
as an attorney
03:04
advisor in the executive office of
03:05
immigration review in new york city
03:07
prior to moving to texas
03:09
thank you for joining us heather thank
03:11
you for having me
03:13
okay let's dive on in first thing for
03:17
remote advocacy or remote hearings
03:20
how do you prep for a hearing now now
03:22
that it's all online
03:23
well the good news is that it's not all
03:25
that different from your pre-pandemic
03:28
trial prep
03:28
you still do the same things mostly
03:30
there's just a few extra steps
03:32
that you're going to have to do in
03:34
addition to what you'd usually do for an
03:36
in-person
03:38
hearing to prepare your file i guess
03:40
it's all
03:41
a fair trade-off though you don't have
03:42
to fight traffic you don't have to find
03:44
parking
03:45
so it you do have to take a couple of
03:47
extra steps but it's really not
03:48
that much more work and it's not that
03:50
much more intimidating than an in-person
03:52
hearing would be
03:57
so first what i'd suggest you do is well
04:00
before the hearing
04:01
check your court's local rules for what
04:04
their what their plans are for remote
04:06
hearings
04:07
courts will generally for example have a
04:09
deadline for you to send your trial
04:11
exhibits to the court's dropbox or maybe
04:13
they'll prefer that you email
04:15
the trial exhibits to the court reporter
04:17
or the coordinator
04:18
that deadline and that process is going
04:20
to vary from court to court
04:22
and it does change even within the same
04:24
court so it's always good to
04:26
check early and often on the court's
04:28
website or if they don't have a website
04:30
check with the court coordinator
04:32
to see if there have been changes since
04:33
the last hearing you had
04:36
when you send in your exhibits
04:39
usually they ask you to do that 24 hours
04:41
ahead of the hearing um
04:43
you're gonna need to copy it to opposing
04:45
counsel
04:46
um and you do that at the same time that
04:49
you're submitting it to court
04:50
now you as you probably expect you know
04:54
pre-submitting
04:55
the exhibits that way doesn't mean that
04:57
those exhibits are admitted
04:59
into evidence so if your opponent sends
05:02
in something crazy
05:03
you will object to it in the hearing the
05:06
same way that you would in an in-person
05:07
trial you don't need to take any
05:09
additional steps in advance to quash it
05:11
or suppress it or
05:12
strike it it's not in evidence until
05:14
it's actually offered and admitted in
05:16
the hearing
05:18
and heather so you mentioned email but
05:20
have you also tried or
05:21
judges maybe required you to e-file it
05:23
because there is a way that i think
05:24
you file something and just serve and
05:27
that file is part of the record and that
05:28
goes to the opposing counsel or the
05:30
party so have you seen any courts i know
05:31
in one of our courts
05:32
they've required that uh and it'll be
05:35
part of the e-file record
05:37
i haven't seen courts wanting to do that
05:40
but again that's why you want to check
05:41
with each court's
05:42
individual preference because it is
05:45
varying from one court to another
05:47
i've seen that most don't want it to be
05:49
in the
05:51
clerk's file you know when you e-file it
05:53
it goes into
05:54
say the district clerk's file and so
05:57
then
05:57
on appellate it would be in the clerk's
06:00
record and they don't really
06:01
want it there because these are your
06:04
trial exhibits and so
06:05
it won't be in the record at all unless
06:08
and until
06:09
you have offered and admitted in the
06:11
hearing and then it would go into the
06:13
reporter's record
06:14
so usually they want you to submit it
06:17
through a different channel
06:18
not through the e-filing process but you
06:21
know each
06:22
judge's preference may vary there so and
06:25
another question uh in tarrant county
06:29
we're we're getting these notices of
06:31
these hearings and
06:33
it'll say something like you have to
06:34
submit this within
06:37
each course a little different right it
06:38
might say 24 hours it might say 48 hours
06:41
or they might say
06:42
the business at noon the business day
06:44
before the hearing
06:46
and um my question is have you ran into
06:49
or heard stories of judges
06:52
strictly enforcing that rule and not
06:53
letting
06:55
exhibits or evidence in that wasn't
06:56
given in advance time
06:58
the way it was the way the notice of
07:00
hearing was supposed to like
07:02
say for example if if i have a if i'm
07:04
defending an eviction in county court of
07:06
law
07:07
and i'd forget to submit the ledger or
07:10
something
07:11
um according to that notice have you
07:13
have you heard of any
07:14
judges saying no no no we're not going
07:16
to consider this because it wasn't given
07:17
to us
07:19
with that advanced notice as our notice
07:21
of hearings as it should have been
07:22
yes yes i have seen that and generally
07:25
that's done
07:26
on the objection of the opposing party
07:28
usually because
07:30
not because you missed the deadline by a
07:31
couple of minutes
07:33
um but because you just filed it you
07:36
know five minutes before the hearing
07:37
started
07:38
and as with anything else you can still
07:40
do an offer of proof you know if
07:42
something is excluded for that
07:44
reason and but you think that you had
07:46
good cause it should be included in the
07:47
record you can still make a request to
07:49
do an offer of proof and they can do
07:51
that remotely as well
07:52
but yes i have seen judges exclude
07:55
untimely
07:57
produced evidence that was required to
08:00
be produced
08:02
to the other side into the court for the
08:04
remote hearing
08:05
specifically and most of the time the
08:07
court's local rules will say
08:09
specifically that
08:10
you know if you don't have your evidence
08:12
submitted according to the local rule
08:15
that it is subject to exclusion
08:19
yeah and interesting i mean pablo
08:21
belinda have you guys had
08:22
that issue pop up i mean there's been
08:25
because we do
08:26
at least on our end on the eviction
08:28
defense side we do a lot of these cases
08:29
kind of triage style so like we
08:31
we don't get the case and we don't
08:33
retain the client until
08:35
sometimes less than an hour before the
08:37
hearing and so it's hard for us to
08:39
abide by that rule of course the judges
08:41
know that
08:42
right and i bring it up and then they'll
08:44
either reset the case or
08:45
or let me bring in whatever i need to
08:46
bring in for the most part but i'm
08:48
i'm curious if you guys have seen it
08:50
across the service area
08:52
i i i'm go ahead i'm sorry oh oh no
08:55
sorry go ahead pablo
08:57
yeah i you know i i can i haven't heard
09:00
from our team members about that i think
09:02
judges are just trying to catch up right
09:03
now to even be properly introduced into
09:05
the record
09:06
that even in some cases i think having
09:07
the discussion is like a first for them
09:09
when you're trying to introduce certain
09:11
records you know when it's that quick of
09:12
a hearing
09:13
but um those that have set a policy
09:16
uh have some flexibility at least you
09:18
know when it comes to either e-filing or
09:20
emailing or you know before discussing
09:22
it before time and i think heather's
09:23
correct
09:24
the main concern they have and the one
09:26
that i've seen it's in spectrum
09:27
it's like uh if you're going to put it
09:29
in the record just make sure it actually
09:31
is done properly
09:32
don't just show it to me you know like
09:33
that and then bring it in so even if
09:35
it's a little late a little early
09:36
let's go through the process you know
09:37
authenticity admissibility and then
09:39
bring it in
09:40
i think that's a bigger concern yeah and
09:42
i would say you know by analogy you can
09:44
also look to
09:45
how it would work if it were under the
09:47
discovery rules
09:49
not that this is exactly the same but if
09:51
you are
09:52
getting onto a case and it's an
09:54
expedited proceeding like
09:56
an eviction would be and they just
10:00
it's a tenant that just got you
10:02
yesterday or whatever
10:04
you know you can make the argument as
10:06
you would under the discovery rules
10:07
that you can bring the evidence in
10:10
because
10:11
it would not be an unfair surprise to
10:14
the other side and that you had good
10:16
cause for failing to produce it timely
10:18
and so the court has discretion to admit
10:21
it and you just you'd want to be
10:22
prepared to make that argument but it's
10:24
it's doable
10:25
especially in that kind of situation
10:26
where you're talking about a
10:28
very last-minute retention of an
10:30
attorney in an eviction
10:32
case i think you haven't gone past like
10:34
five points and already
10:35
taken up 10 of your minutes just on this
10:36
issue but that's a very
10:38
fine point you just made right now we're
10:40
recording this in the end of january
10:41
just
10:42
weeks into the new rules of discovery
10:44
which actually are going to be
10:46
interesting because it you're correctly
10:48
right it's a very fine point that i
10:49
think practioners want to remember that
10:51
under these new rules there's a whole
10:52
new set of exchanges and documents you
10:54
can probably
10:54
depend on and say you're working on as
10:57
you build up to the case um
10:58
people want to look at that there are
11:00
several cles out there about the
11:01
discovery rules and that and that's
11:02
going to create a whole new round of
11:04
documents they have to disclose
11:05
especially in family law cases
11:08
yeah and it the habits that you're
11:11
getting into with
11:12
it pre-exchanging the exhibits your
11:14
trial exhibits which you know hopefully
11:16
even pre-pandemic most of us were doing
11:18
on most of our cases anyway
11:20
but you know you're going to have to
11:22
carry that over under the new rules for
11:24
cases that are filed on or after january
11:26
1st you're going to have to make that
11:27
exchange
11:28
of trial exhibits 30 days ahead of trial
11:30
not just the day before
11:32
so we're getting into the habit now and
11:35
we're going to have to carry that
11:36
through to all of our cases
11:37
in person and remote under the new rules
11:40
anyway
11:41
and you know one of the good things
11:43
about this is
11:44
that even in person pre pandemic i
11:47
always
11:48
would recommend to everybody make
11:51
that have a conversation with your
11:53
opposing counsel ahead of the
11:54
hearing try to get stipulations to the
11:57
pre-admission of
11:58
exhibits because it saves the court's
12:00
time and particularly now when the
12:01
courts are
12:02
experiencing backlogs in many cases
12:05
because they have cases that piled up
12:07
while the courts were closed and
12:09
while they were adjusting to remote
12:11
hearings do as much as you can to
12:14
make the process efficient if you don't
12:16
have
12:17
a real objection to an opponent's
12:19
exhibit
12:20
just make an agreement with them that
12:22
you'll pre-admit it let the court know
12:23
when you first start the hearing and
12:25
then you don't have to lay the
12:26
predicates for it then you can save some
12:28
time that way
12:30
other times same things that courts are
12:33
implementing under the remote hearing
12:35
rules
12:35
they're in a lot of cases allowing or
12:38
even requiring that
12:39
uncontested orders be proved up by
12:42
affidavit
12:43
um there are a couple of ways you can do
12:45
that even
12:46
without having to get in person contact
12:49
between
12:50
the client and the notary you can use
12:54
there's an executive order that the
12:55
governor signed in 2020 to allow for
12:58
remote notarization by
13:00
video conference um so that the notary
13:02
can get you can hold up the id to the
13:04
camera
13:05
the notary can check your id remotely
13:08
and then the actual signed instrument
13:11
can be exchanged between
13:13
the signer and the notary by fax or
13:16
email or whatever kind of electronic
13:19
means is
13:20
efficient for them and of course don't
13:21
forget about the
13:23
unsworn declarations under cprc 132.
13:26
you can do that for your prove up
13:29
affidavit if say you have an uncontested
13:31
divorce and you just want to get that
13:33
proofed up a lot of courts are
13:35
encouraging that because that's a good
13:37
time saver for them as well it's on
13:38
submission and you don't have to
13:40
schedule an in-person or remote hearing
13:42
to get orders proved up in a lot of
13:45
courts so check on that policy in each
13:47
court
13:48
um something to be aware of just in
13:52
terms of how this is functioning
13:54
it is changing um the individual courts
13:58
have some discretion of course in their
13:59
local rules and then there are also
14:01
statewide rules that are applicable to
14:03
all courts
14:05
if you want to know the background if
14:07
you're not sure if the court that you're
14:09
in front of
14:10
is implementing the remote proceedings
14:13
rules
14:14
correctly you can check on that
14:17
the texas supreme court does
14:19
periodically issue and update its
14:21
emergency orders and that's public
14:23
information you can see it at
14:25
www.texascourts.gov
14:27
you can see what the current emergency
14:30
orders are
14:31
they have to be updated you know they
14:33
can't be valid for more than 90 days at
14:35
a time and so
14:36
they have a lot of different iterations
14:39
of similar orders
14:40
so check on the most recent orders the
14:43
ones that are
14:44
in effect at the court's website and if
14:46
you want additional
14:48
information you can also look on the
14:49
office of court administration
14:51
their guidance is really aimed at court
14:53
operations
14:54
not at how to's for practitioners but if
14:57
you want to know
14:58
the framework that your court is having
15:00
to operate within what the rules are for
15:02
them
15:03
um you can get a look at that on the OCA
15:07
website as well
15:08
and you know if you are having trouble
15:11
with the court if you think the court is
15:12
not following the state guidance
15:15
if you're working on a pro bono case
15:17
that was referred to you from a legal
15:18
aid organization reach out to us because
15:20
if you're dealing with the problem we
15:22
probably are too
15:23
and we may have some ideas about who to
15:25
talk to or you know what levers to pull
15:27
to try to get it
15:28
fixed um the OCA may also be able to
15:32
assist and you know it may be possible
15:34
to
15:35
work with the regional administrative
15:37
judge to troubleshoot problems if you
15:39
have a particular judge who is
15:41
misunderstanding or misapplying the
15:43
current rules
15:44
you know let's all give each other some
15:46
grace these rules are changing
15:47
frequently and this is a little weird
15:49
for all of us so it may be unintentional
15:51
it may be something that we can
15:52
fix just by working with the oca and the
15:55
regional administrative judge to get it
15:57
sorted out i just wanted to say i think
16:00
you read our minds if anybody listens to
16:02
another podcast we always mention that
16:03
at one point
16:04
don't stay there you're spinning your
16:06
wheels come back to us and let us know
16:07
how we can help and something like that
16:09
so
16:09
it's a good point yeah absolutely
16:13
so i'm going to move on to the the next
16:16
stage in your preparation you'll
16:18
you're going to have exhibits and i
16:19
think that can be kind of the
16:21
the part of the remote hearing that is
16:23
intimidating you have a way that you've
16:25
been operating
16:27
in hearings and exhibits and preparing
16:29
your exhibits and introducing your
16:30
exhibits and you're thinking how am i
16:32
going to do this on a computer
16:33
especially if you're like me
16:35
and you use a computer but you don't
16:37
really feel like you're a techie kind of
16:39
person
16:40
um is this something to be afraid of and
16:43
no it's actually not you know you do
16:45
want to
16:46
prepare yourself so that you're not
16:49
trying to figure it out on the fly in
16:50
the hearing
16:52
but it is doable even if you're not
16:55
techie um so you're going to
16:58
be able to share your exhibits on
17:02
zoom you know most of these are being
17:03
done on soon that's that's the most
17:05
common platform that courts are using um
17:09
so the the easiest thing to do i think
17:12
is
17:13
create a file folder that's you know
17:16
jones trial exhibits
17:18
and put your exhibits into the trial
17:20
folder um
17:22
and then you can if you want to have it
17:25
on your drive i find it just
17:26
having it on my desktop in a folder is
17:30
the easiest way
17:31
if you're somebody who's very mobile you
17:33
might want to put it on cloud storage so
17:35
that you can access it from different
17:37
computers but that's an extra step
17:39
that i i don't think you need to take
17:41
unless it's really efficient and
17:43
more productive for you to do it through
17:45
the cloud
17:46
one thing i mentioned if you use
17:49
citrix or some kind of workspace like
17:52
that
17:54
oftentimes if you're entering into a
17:56
zoom meeting
17:57
through a citrix workspace uh the sound
18:00
doesn't work they
18:01
you can see them but they can't they
18:03
can't hear you and you can't hear them
18:05
and i've heard that from enough people
18:06
that i don't think it's just a me
18:08
problem
18:09
so you're gonna need to get into the
18:11
zoom meeting
18:12
on your local desktop and if you have
18:15
your file folder stored on your citrix
18:18
desktop you won't be able to
18:19
share files from your citrix desktop in
18:22
a meeting that you've entered through
18:23
your local desktop
18:25
so you know word to the wise just copy
18:27
that folder over onto
18:29
either a cloud storage or your local
18:32
desktop so that you can actually
18:33
open the files and share screen from
18:36
your
18:37
local file your local desktop into the
18:39
zoom meeting don't have it
18:41
suspended over there in your citrix and
18:43
be scrambling to try and get it over
18:44
while the hearing is in process um
18:48
so in advance of the hearing of course
18:51
you know
18:51
pdf is the format for written documents
18:55
that's easiest to share it's easiest for
18:57
people to open
18:58
try to avoid having your exhibits
19:00
submitted to the court in word or
19:02
something like that
19:03
you know it's really easy to convert
19:04
nowadays so if it's in
19:06
word or excel or something like that
19:08
convert it to pdf
19:11
now sometimes you're going to have video
19:13
files or things like that that aren't
19:14
going to be convertible to pdf and
19:16
what i would recommend is that you'll
19:20
want to practice in advance opening up
19:23
those different kinds of files because
19:25
i i've had it happen where they
19:29
i can see the video running on zoom but
19:32
the person on the other side can't see
19:34
it
19:34
so i i would practice it you know with a
19:36
colleague or your paralegal just in
19:38
advance to make sure that whatever
19:40
you're doing on your end is actually
19:42
happening
19:42
on the other side as well with each
19:45
different file type just you know can
19:46
you see what i'm sharing
19:48
yes no and then if the answer is no
19:51
you can figure it out in advance so that
19:53
you know the steps to make that file
19:54
operate on
19:55
zoom in when it comes to your hearing um
19:59
your court might have a file naming
20:00
protocol that they prefer you know
20:02
if it's like P-01 something like that
20:05
some courts are very particular about
20:07
that just check in advance if they have
20:08
something like that and then
20:10
just keep a list handy for yourself you
20:13
know what each exhibit is if they want
20:14
it to be named in the
20:16
actual pdf files just P-01 and they don't
20:19
want any
20:20
descriptive information and but you need
20:22
the descriptive information to jump
20:24
around your exhibits and you know print
20:26
out a list and have it handy
20:27
you may want to have all of your
20:29
exhibits in hard copy
20:31
you know that's a personal preference
20:33
thing
20:34
you know sometimes you might want to
20:36
sift through something and you don't
20:37
want to be scrolling through different
20:39
tabs
20:40
so think about it in advance what works
20:42
out best for you
20:43
and your presentation and then
20:46
another point about exhibits remember
20:49
that remote hearings typically
20:50
are live streamed on youtube or
20:53
something like that
20:55
and now you should be redacting
20:57
sensitive information
20:58
anyway even in in-person hearings but
21:00
you may not
21:02
be thinking about it so much in person
21:04
be definitely sure that you're
21:06
redacting appropriately because this can
21:09
be seen by anybody in the public
21:12
so if you're if you need a refresher on
21:15
what needs redacting check the texas
21:18
rules of civil procedure 21c
21:20
um and be sure that you have that
21:22
redaction done on the document ahead of
21:24
time
21:25
if it's the sort of thing where the
21:26
sensitive information is in itself
21:29
relevant to the proceedings um
21:32
let the judge know that before you share
21:34
screen and
21:35
say judge you know i have sensitive
21:37
information that i need to share with
21:38
the court can we turn off the live
21:40
stream for this portion
21:41
that generally isn't going to be a
21:42
reason to close the entire hearing
21:45
to the public but you can have it shut
21:47
down for the introduction of
21:49
that one particular sensitive item
21:54
and of course you know as with in-person
21:56
hearings be sure that your client is
21:57
familiar with the
21:58
exhibits and if your client is going to
22:00
be in a different
22:02
location from you you know they're at
22:04
their home you're at your home or
22:06
something like that be sure that you
22:08
have taken the steps that you need to
22:10
make sure that your client has both
22:12
your exhibits and the opposing parties
22:14
exhibits in advance of the hearing
22:16
um and they she might need to look at
22:20
the exhibits of course if you're proving
22:22
them up through her she's going to be
22:23
testifying about them
22:24
so be sure that she has a plan for how
22:27
she's going to view them
22:28
do you need to get her a hard copy to
22:30
look at while your test
22:32
while she's on the stand or can she
22:35
manipulate her computer well enough is
22:37
she going to be on the kind of device
22:38
where she can
22:39
jump from one tab to another and she's
22:41
fine with that
22:42
so just get familiar with your client
22:45
and what she's going to be using to
22:47
enter into the hearing um and what her
22:50
level of comfort
22:51
is with the technology and then work it
22:54
out with her in advance
22:55
and it can be a little tricky if you get
22:57
a pile of documents three o'clock the
22:59
day before from
23:00
your opposing counsel but be sure that
23:02
she's at least aware of what's
23:04
in those documents um so that she can
23:07
say okay well at least i know what it is
23:08
i've seen it before i know that your
23:11
respondents exhibit five is the
23:14
october fourth text message or something
23:16
like that so that she knows what it's
23:17
about
23:18
um so just be sure that
23:22
you know that she's seen it before and
23:24
that she's familiar with
23:26
um you know how she's going to access
23:29
those documents before you start the
23:30
hearing
23:33
okay um well you've given us a great
23:36
tutorial on what to do before the trial
23:38
um but day of the trial like what should
23:41
you do as far as like checking tech
23:43
and making sure um everything is set
23:46
for uh your hearing what are some pro
23:49
tips as far as presentation
23:52
well when you're getting ready for the
23:54
hearing
23:55
decide of course where you're going to
23:56
be are you going to be at your office
23:58
are you going to be at home
23:59
where's your client going to be where
24:00
your witness is going to be go through
24:02
it with them
24:03
um think about it a little bit in
24:05
advance some clients
24:06
are going to be zoom pros too and others
24:10
are going to be terrified by this and so
24:12
work with them about
24:13
what their plan is going to be if you
24:17
have a client who needs to be with you
24:20
to connect like if they don't have
24:21
access to a device and you need to
24:23
meet them up at the office um don't
24:26
you think about how you want to work
24:28
that out logistically because
24:30
if they're on one device and you're on
24:33
another device in the same room you're
24:34
gonna have feedback and echo problems
24:37
um but if you're both sitting at the
24:38
same laptop looking at the same
24:40
camera and using the same microphone
24:43
people may not be able to hear you
24:44
very well because you you're both going
24:47
you're going to be on the left and the
24:48
right and you're
24:48
you're going to not have very good
24:51
visual
24:52
or audio connection doing it that way
24:54
it's
24:55
preferable if they need to be in your
24:57
office that they're in one room and
24:59
you're in another and you're on separate
25:00
devices
25:02
um just in terms of how it's going to
25:04
work for other people on the call
25:07
so then of course you know when you're
25:09
setting up
25:10
get on a little bit in advance so that
25:13
you have time to troubleshoot issues
25:15
adjust the camera make sure that you
25:16
don't have
25:17
weird stuff behind you um
25:20
be sure that the lighting looks good you
25:23
don't need to
25:24
worry too much about um
25:28
the setting being nice you know this
25:30
isn't rate my skype room it's
25:32
a hearing and the important thing is
25:35
that
25:36
people can hear and see the speaker
25:40
and that there aren't weird distractions
25:42
going on
25:43
that are going to cause people to be
25:46
less able to focus or cause the court
25:48
reporter to be unable to transcribe the
25:50
proceedings
25:51
so i wouldn't worry so much about
25:53
whether it's in a nice place or they
25:55
have a fancy
25:56
zoom background or anything like that a
25:58
lot of people a lot
25:59
our clients especially they may be
26:02
best able to connect to a hearing from a
26:05
car
26:06
that's parked in a parking lot outside a
26:07
restaurant that has good wi-fi
26:10
that's fine you know so long as they're
26:12
not driving
26:13
or um in a place that's noisy it's
26:17
totally okay if they're in a vehicle
26:19
um it's just can we see you can we hear
26:22
you
26:22
and that's the most important thing um
26:25
make sure that they if they're going to
26:27
be someplace
26:29
where you're not make sure that they
26:30
have the zoom id meeting
26:32
they can get into it they have the app
26:35
downloaded they know how to do that
26:37
and be sure that they log in with their
26:38
real names you know that
26:40
a lot of times people will log in and
26:42
it'll say iphone
26:43
or it'll have a phone number or it'll
26:45
have some goofy nickname
26:47
and so they're going to get into the
26:48
course waiting room and especially at
26:50
the start of the hearing maybe docket call
26:51
and they've got you know
26:53
30 people in the hearing and the judge
26:55
is going to admit people
26:56
who they can recognize you know so if
26:59
the judge
27:00
sees some random phone number then they
27:02
ask the judge has to come
27:04
into the meeting and say does anybody
27:05
recognize this 832 number
27:08
and then there's a lot of back and forth
27:10
so you can just let them know that kind
27:12
of stuff in advance that can
27:14
expedite matters for you on file day
27:17
um and you just remind people
27:20
if they're going to be at home or in
27:22
their vehicle
27:23
or somewhere that's not with you remind
27:26
them that when they're testifying
27:28
you know if the rule hasn't been invoked
27:31
it's not that they have to exclude
27:33
people or if the rule has been invoked
27:35
and there
27:36
are non-witnesses in the house it's okay
27:38
that other people are
27:40
there generally but you can't talk to
27:42
other folks when you're testifying
27:44
sometimes you know especially with our
27:46
elderly clients or
27:48
our you know our clients who have you
27:51
know they're
27:51
nervous or they have less education they
27:54
have somebody there with them
27:55
who they they're like well what should i
27:57
say what should i say and
27:59
they can't do that so just let them know
28:00
that in advance that you know while it's
28:02
okay if your mom
28:03
is in the other room or your
28:06
you know your best friend is there for
28:08
moral support and
28:10
isn't testifying they can hold your hand
28:12
but they can't talk and they can't tell
28:14
you what to say and you can't
28:15
be looking over at them you know so
28:18
if just let them know that it's okay
28:21
who's okay to be there and who's not
28:23
okay to be there beforehand
28:27
so uh i'm this part of the
28:31
i was gonna actually ask about the rule
28:32
but then i thought
28:34
well that's a little in the weeds but
28:35
then you brought it up anyway
28:37
uh so i did have an instance where we
28:40
had to invoke the rule and that exact
28:42
issue happened
28:43
um the person testifying
28:46
uh was on a duel was on a camera and
28:50
one of the other there was a husband and
28:51
wife and
28:53
they the judge had to issue the
28:55
individual the
28:56
person not testifying out of the room
29:00
but i mean like it kind of it's absurd
29:03
right it's like
29:04
who can t she's just off camera she
29:07
could just be just as easily
29:08
behind the ipad or like behind the door
29:11
listening to everything
29:12
right um so like it's kind of just a
29:15
comment but
29:16
have you had any issues invoking the
29:18
rule and and for folks who don't know
29:19
what the rule is maybe kind of briefly
29:21
explain what that is
29:22
sure that the rule which gets broken in
29:25
person proceedings too
29:27
is oh yeah that you know if you are
29:29
going to be a witness in a proceeding
29:32
a non-party witness in a proceeding at
29:34
the start of the proceeding
29:36
any of the parties can invoke the rule
29:38
which is to say you know the judge
29:39
admonishes them
29:41
get out and don't talk to anybody about
29:43
the case while the case is going on you
29:45
know so don't talk about your testimony
29:46
with anybody while we're
29:48
you know until the whole proceeding is
29:50
over and
29:51
i mean of course at the courthouse
29:53
people break this all the time you hear
29:54
them in the hallways
29:56
but you know it feels more imminent
29:59
when it's on a zoom hearing and people
30:02
are
30:03
actually talking to each other um
30:07
in the hearing while the person is
30:09
testifying right
30:10
um so yeah it
30:13
it's good to talk to your client about
30:15
it in advance so they're not hearing it
30:17
for the first time from the judge
30:19
because
30:20
they might be nervous and not
30:22
understanding they may have made plans
30:24
with their significant other i mean with
30:26
with a spouse like the spouse doesn't
30:28
get excluded under the rule either
30:30
but you know even if the person is
30:33
allowed to be there
30:34
you're not supposed to be chit chatting
30:36
while you're on the stand and
30:37
if i'm asking the question to husband
30:39
husband should be providing the answer
30:41
not wife so yeah people misunderstand
30:45
that
30:46
in in-person trials too you always you
30:48
know you have the problem of somebody
30:49
like mouthing answers or writing
30:51
down but and it happens in zoom hearings
30:54
too so
30:55
if you can exert a little client control
30:58
and let them know that in advance it
31:00
will be much better
31:01
so the other party then you just you
31:04
object the same
31:05
you know they're like oh your honor i
31:06
object it seems like she's talking to
31:07
somebody else
31:08
so you brought up one thing i do want to
31:10
say in that case the
31:11
the husband and wife were it wasn't that
31:15
their marital status wasn't an issue it
31:17
was uh
31:18
they were acting as corporate agents of
31:20
different representations of
31:21
corporations
31:22
and so and the the corporation was the
31:25
defendant
31:27
and so that's why they were excluded um
31:29
it's a little tricky
31:31
yeah that is tricky yeah yeah um
31:34
but the judge agreed that they should be
31:36
excluded so but anyway uh
31:38
so uh that leads so
31:42
you talked a little bit about client
31:43
prep and that's one thing i want to get
31:44
into because i recently had an
31:45
experience
31:46
in a zoom trial uh where
31:50
normally if this was in person i would
31:52
talk to my client be able to
31:54
sitting next to them at the defendants
31:56
or plaintiffs table say hey
31:58
chill you know uh you know like maybe
32:01
tap them on the shoulder
32:02
or or like pass them a note that says
32:05
like relax you know
32:06
i'll ask the questions only only talk
32:08
whenever or
32:10
of course i'd also do that in in trial
32:13
prep too
32:14
but um in person it's a lot easier to
32:16
kind of rein in your client when they're
32:17
being
32:18
disruptive or unruly or but recently i
32:21
had an experience where my the judge had
32:22
to admonish
32:23
my client it was like hey stop stop
32:26
doing this
32:26
stop doing this you know stop shaking
32:29
your head um
32:30
stop making hand gestures uh so
32:33
i guess it's kind of just a comment that
32:35
with these in person or with these
32:37
zoom hearings it's gonna take a lot more
32:40
client prep and a different thinking of
32:42
what client prep looks like
32:44
because you have a lot less control do
32:46
you have any thoughts on that
32:47
yeah it is i think
32:51
you know you have the sense of
32:53
familiarity they're testifying you know
32:55
maybe from their homes or
32:56
you know that so yeah i've i've heard
32:59
stories of
33:00
people showing up you know to a hearing
33:03
from bed without a shirt on and you know
33:06
so
33:07
yeah there's that level of comic book
33:09
you know talk to them like telling you
33:11
it doesn't matter if it's fancy or
33:13
anything but do try to keep your
33:15
personal
33:15
items out of view you know don't have
33:18
underpants on the bed behind you
33:20
and put on a shirt and dress
33:22
appropriately
33:23
um and yeah it you can communicate with
33:27
your client
33:27
during uh you know hearing like that you
33:30
can send
33:31
chat messages through zoom and you know
33:34
they say that
33:35
the courts aren't looking at that or
33:38
you know you just shoot them a text or
33:40
something like stop screaming
33:42
um you know so you could
33:46
do that um you can also
33:50
ask for the court to give you a breakout
33:52
room if you need
33:53
to have a private conversation if you
33:55
have you know
33:56
if your client is really getting
33:57
overworked you may say you know
34:00
your honor can we take a break and i can
34:02
i speak to my client in a breakout room
34:04
you know for two minutes and then we'll
34:06
come back you know maybe i can
34:08
straighten this out
34:09
so and then you just say look you know
34:11
you gotta dial it back this isn't
34:13
working for you so
34:14
just answer the questions that are asked
34:16
and you know
34:18
watch your body language because when
34:20
you're on camera
34:22
the gestures we can only see the your
34:24
head and your shoulders
34:26
and the gestures are coming across
34:29
more aggressively than perhaps you think
34:31
they are so be aware of how you're
34:35
coming across here and
34:36
our goal here is to get
34:40
your result and to get out of here
34:41
without you know everybody you know
34:43
being mad so yeah it does
34:47
it's a different kind of trial prep for
34:49
your client but you know those things
34:51
happen in in-person trials too that you
34:54
let your client know when their behavior
34:57
is out of line it's just
34:58
a little bit of a different step to do
35:00
that but yeah
35:02
you can pass a note digitally you can
35:05
you can meet with them privately in a
35:07
zoom hearing as well
35:10
when you kind of lose the sobering
35:12
effect that
35:13
stepping into the courtroom has and go
35:16
up to the judge
35:17
because i've heard had a couple
35:19
firecracker clients but as soon as we
35:21
hit the doors the courtroom and they see
35:22
the judge and
35:24
uh the seal behind him and the bailiff
35:27
in the corner they kind of
35:28
Take it down a notch but yeah in the privacy of
35:31
their own home it's
35:33
sometimes you do forget this is still a
35:35
court proceeding
35:37
yeah and the the um the informality can
35:40
be a good thing and a bad thing you know
35:41
for clients who are really struggling
35:43
with the anxiety
35:44
of going to court maybe it's a good
35:46
thing and we just
35:48
help them take advantage of the good
35:51
things about the remote proceeding
35:52
without taking it too
35:54
far to the point where they're
35:55
disadvantaging their own case by
35:58
being too familiar um and
36:01
again you know on the topic of it being
36:04
at home
36:04
especially in a family case but also in
36:06
other kinds of cases
36:08
kids may be there and especially if
36:11
you're talking about
36:12
an explosive situation if you're talking
36:15
about the kids
36:16
um if it's a custody case or a divorce
36:18
case
36:19
um have them think in advance about
36:22
where their kids are going to be
36:24
and be sure that their kids are not
36:26
accessing the hearing especially older
36:28
kids who have internet access
36:30
make sure that the kids don't have the
36:32
ability to
36:33
log in and watch it on youtube
36:37
and make sure that the kids aren't
36:39
running through the room or sitting in
36:40
the room with them
36:42
so it that may be challenging for a lot
36:44
of
36:45
them but you know it's something that
36:47
you'll want to think about
36:48
in advance so that they have a plan in
36:50
place so the children aren't
36:51
being exposed to the hearing of the
36:53
children aren't hearing what's being
36:55
said
36:56
in the trial um
36:59
and it's always good with your clients
37:00
to do a trial run with them so you can
37:03
if at all possible see where they're
37:05
going to be at and you can troubleshoot
37:07
like
37:08
oh you know you're sitting right in
37:09
front of a window i can't see your face
37:12
that happens a lot you know if there's
37:13
backlighting um or
37:15
i i can't hear you there's something you
37:18
know there's some issue that
37:20
we you know we gotta work on your camera
37:23
your
37:23
microphone your the place where you're
37:26
at
37:26
so you know beforehand that there's a
37:28
problem um
37:30
and just you know and you can do that on
37:33
your end too
37:34
with you know call them and just check on your
37:36
connections but especially with your
37:37
clients and witnesses it's probably
37:39
worth double checking that
37:41
the day or two before the hearing so
37:42
that you can figure out some other
37:44
options if
37:45
what they have set up just won't work um
37:48
you know during the hearing uh wear
37:51
appropriate clothes you probably don't
37:53
need to be told that
37:54
but your clients and your witnesses
37:55
might um
37:57
it's a good idea to have them mute and
37:59
for you also to mute notifications
38:02
on your computer or your phone um you
38:04
know if you have
38:05
your email open and it's dinging and
38:07
dinging and dinging if i can hear it you
38:09
can hear it and
38:10
nobody really wants to hear all that
38:12
it's possible to
38:13
you know one you could just close the
38:15
program out or two you know with outlook
38:18
you can go
38:18
into the settings and you can have you
38:20
can turn off the
38:22
sound notifications while you're in the
38:24
meeting
38:25
um if you're going to be sharing your
38:28
screen
38:29
in a hearing think about what other tabs
38:31
you have open
38:32
and so if you have you know silly stuff
38:34
that you don't want other people to see
38:36
or private things or other client
38:38
matters
38:39
open on your screen um you should close
38:42
that out before you start because you
38:44
want to inadvertently click on a tab
38:46
that you don't want other people to see
38:48
um you know log in early it's good to
38:51
double check because even if evertything was working yesterday
38:54
maybe today you have
38:55
a connectivity issue and you're going to
38:56
need a few minutes to
38:58
sort out your router or something so
39:00
give it a shot
39:01
15 minutes early better better to be
39:05
logged in sooner than
39:06
late um and when you log
39:10
in be sure that your the name that
39:13
you're
39:13
showing on the screen is your name um
39:17
some courts will want you to change if
39:18
you're in a if you're representing a
39:20
party they might want you to
39:21
show up on the screen as like mother's
39:24
attorney
39:25
or petitioner's attorney um
39:28
in addition to your actual name so you
39:31
know you can check with the court
39:32
coordinator ahead of time and see how
39:34
they want it or
39:35
you know the judge might let you know
39:37
too but at least have your
39:39
your real name when you log
39:42
in so that they know who to admit from
39:44
the waiting room
39:46
um during the hearing of course speak
39:48
slowly and clearly
39:51
you have to do that in in-person
39:53
hearings as well but
39:54
it's even more difficult for the court
39:57
reporter
39:58
in zoom hearings to make out
40:01
what people are saying if it's um
40:04
if people are talking over each other or
40:06
if
40:07
they're you know going too fast
40:10
it seems like that's very challenging
40:12
and especially if if you talk over
40:14
somebody i think the way that zoom
40:16
does it it um it lowers the volume
40:20
on the other speaker to like 20 percent
40:22
so if there's background
40:24
noise on one speaker's side it can
40:28
suppress the volume on the speaker side
40:30
so be careful about background noises
40:33
and things that are happening around you
40:35
can actually
40:37
interfere with other people's ability to
40:39
hear the speaker
40:40
um so be careful about that kind of
40:43
stuff and think about how
40:46
the the court reporter can hear you or
40:48
not um so
40:50
mute yourself when not speaking now that
40:51
that can be a little bit of an
40:53
issue when you're listening to testimony
40:56
that you might need to object to so
40:58
you might do best to kind of have your
41:01
your mouse
41:02
hovering over the mute button some
41:04
people um
41:06
make little signs that they hold up when
41:08
they want to object i haven't seen that
41:10
really take off partly because i think
41:13
the the judge might be looking away from
41:15
the screen
41:17
when you make the objection and if
41:19
you're holding something up and they're
41:20
not looking then the testimony might go
41:22
on so
41:24
i you if you're in a place where it's
41:27
nice and quiet behind you
41:28
and you're listening to testimony it's
41:30
going to be easiest
41:33
just have your sound on and object but
41:36
if
41:37
you need to have it muted because
41:40
there's background noise
41:41
just you know be quick on that click and
41:44
click yourself off of mute and object
41:46
real quick as
41:47
fast as you can um just you know
41:50
work it out the whatever way is most
41:53
understandable for everybody people
41:57
actually right now listening i'm not
41:58
gonna
41:58
you know see this but i'm actually been
42:00
bothering you in the background here
42:01
heather like doing the emoji constant
42:02
like reactions on the screen you didn't
42:04
see it good for you but i was thinking
42:05
it seemed like you distracted my
42:07
emoticon
42:09
okay good they should create one just
42:11
for attorneys and objection you know
42:12
some kind of screaming rant or something
42:14
we can
42:15
interrupt but anybody who's ever
42:16
listened to our podcast the early ones
42:18
that we recorded will know about the
42:19
whole volume issue where we just
42:20
wouldn't kind of like you know we talked
42:22
over each other and just how bad that
42:23
wasn't distracting
42:25
i want to go back to a minor point i
42:26
think maybe i want to make sure before
42:28
we go on to other issues here
42:29
but i think it's happened to me a couple
42:31
of times that i want to make sure people
42:32
know about it
42:33
when i do a trial run i'll try to do at
42:35
the same time when the hearing is set
42:37
because you'd be surprised how if
42:39
there's children in the house and
42:40
they're homeschooling
42:42
the 9 30 zoom synchronous time takes up
42:44
a lot of bandwidth and if you don't
42:46
do it at that time you might realize
42:47
that your bandwidth is gone
42:49
so um i've had a client you know we
42:51
talked about that and we had to like not
42:52
share bandwidth and stuff it's a minor
42:54
point but i thought i'd let people know
42:55
it matters sometimes what time you log
42:57
on
42:58
yeah that's a really good point too and
43:00
also with lighting
43:01
that maybe the time of day when you are
43:05
practicing
43:06
the the back lighting is not bad but in
43:08
the morning
43:09
it's going to be flooding and nobody
43:11
will be able to see
43:12
so yeah it's a that's a very good point
43:15
to think about you know who else is
43:17
going to be
43:18
on the internet in my house during the
43:20
hearing
43:21
and how are we going to work around that
43:24
if we you know if we have bandwidth
43:28
issues
43:29
how are we going to prioritize in our
43:31
who's going to get the
43:32
the most bandwidth at the time so
43:35
yeah yeah the time does matter
43:40
all right so are we ready to move on to
43:41
talking about exhibits and working with
43:43
exhibits and hearing
43:44
yeah well it's what's our time paulo uh
43:46
do we do we have time to
43:48
uh we're doing good we're about
43:51
16 minutes left here so we can chat
43:53
about uh new science if you want or
43:55
uncle bernie whatever you all prefer
43:57
shoot uh i mean we can talk about that
44:00
all day
44:00
but i mean i wanted to ask heather
44:02
whenever i mean
44:04
we can get to exhibits whichever order
44:06
we want to go in um
44:08
if you have any like cool stories of
44:10
remote advocacy
44:11
how it works um i know right
44:14
that's the kind of face
44:15
cool stories of doing something on zoom
44:17
that's hard to do but
44:18
uh yeah i mean if there's anything
44:20
interesting that stands out like i mean
44:22
one of the ones
44:22
that popped into my brain whenever
44:24
you're talking earlier about sharing
44:25
your screen and mistakes that can happen
44:27
when you do that
44:28
we had a judge a jp judge share his
44:30
screen on accident
44:31
and his work email was up uh he was
44:34
trying to access one of the
44:36
yeah he's trying to access the one of
44:38
the exhibits that was entered by the
44:39
plaintiff
44:40
he was a pro se plaintiff and so the
44:42
plaintiffs didn't know how to do it
44:43
and so he went and shared a screen so i
44:45
could see it because i hadn't seen it
44:46
yet
44:47
um it was like i think it was a notice
44:49
to vacate that he was supposed to be
44:50
showing me but he accidentally clicked
44:51
on the
44:52
share screen that was his work email and
44:53
left it up for about 20 seconds and
44:55
we're like judge your honor
44:57
avert your eyes you know uh but uh yeah
45:00
it's pretty embarrassing um so
45:01
even the judges mess up on that stuff
45:04
yeah
45:05
yeah definitely and again you know it's
45:07
a matter of you know
45:08
this isn't about gotcha let's give each
45:10
other some grace let's try to help each
45:11
other out as much as possible without
45:13
you know disadvantaging our clients of
45:16
course
45:19
not stopping the share after i'd already
45:21
entered the exhibits it's like that was
45:23
yeah that's in my working with exhibits
45:25
list of things to do
45:27
and not do um but you know on the topic
45:29
of
45:30
stories i sometimes i'll check on the
45:34
youtube channel you can look on the
45:36
youtube directory and see
45:37
different proceedings and you know just
45:39
to see like what's working for people
45:40
what's not working so great
45:42
and i saw a hearing it was a family law
45:45
hearing and
45:46
it i think it was an enforcement or a
45:48
modification and there was
45:50
uh the ex-spouses were
45:53
arguing about their possession issues
45:56
and the ex-wife was going through
46:00
a litany of abusive text messages that
46:02
the ex-husband had sent her
46:04
and you know he was trying to be like oh
46:06
you know she's the crazy one i'm
46:08
the the good guy here but he sent all
46:10
these you know really mean text messages
46:12
to her just cussing her out and refusing
46:14
to
46:14
hand the kid over and the way that he
46:17
had positioned his
46:19
camera and the way that he had set up
46:21
his space in the zoom room it was like
46:22
him at a table in a blank room the only
46:25
other thing in the room besides him and
46:27
the table
46:28
was this big taxidermy brown bear and
46:30
the way that he'd focused his camera
46:32
it was like it was clear that they had
46:34
set it up
46:35
to have the entire bear on the screen
46:38
and the taxidermy brown bear was posed
46:41
in a way where they had this like
46:42
claws and its face that like it was
46:43
gonna i was like
46:45
oh man that's probably not the image you
46:48
want to go for here like you're trying
46:50
to be like no she's
46:51
crazy i'm normal but then you know
46:55
you're sitting there listening to this
46:56
testimony about your text messages and
46:58
it's you slumped down in a chair with an
47:01
attack bear
47:03
i thought that's the sort of thing that
47:06
maybe you know before the hearing they
47:07
should have thought
47:08
let's scoot the camera just turn the
47:10
angle a little bit so the brown bear
47:13
isn't in the in the screen with you
47:16
so yeah i mean well i don't want to say
47:18
like oh you have to be fussy about
47:19
the room you know and our clients
47:22
probably don't have a whole lot of
47:23
choices about where they're going to do
47:25
it from
47:25
and that's fine it doesn't have to be
47:27
pretty it doesn't have to be expensive
47:30
looking
47:31
it doesn't have to be a fake
47:33
background or anything like that
47:36
you know you're you, you live where you
47:38
live but you know maybe do think about
47:40
like is the stuff
47:41
that's in the frame with me going to
47:44
convey
47:45
the wrong message and if so just turn
47:47
the camera a little bit to get it away
47:48
from the stuff that you don't really
47:50
want people to see
47:52
before we go to the exhibits here i want
47:53
to show you like my story of my
47:55
experience here as
47:56
y'all just the difference now in
47:57
situations like you know
47:59
um i remember having to learn early on
48:02
to tell my client dress like if you're
48:05
going to church
48:06
to you know don't show up with some kind
48:09
of like
48:10
weed paraphernalia on your shirt when
48:13
you're going to do a custody thing and
48:14
not
48:15
i can't even imagine now having to tell
48:16
people let me see the room you're going
48:17
to do this in
48:18
let me see the posters back there
48:19
because they can give up so much you
48:21
know about the person just saying more
48:23
than the shirts it's like a whole new
48:24
spectrum of
48:25
issues you want to be careful with that
48:27
they don't have to be showing they might
48:28
bias somebody yeah yeah that's the only
48:32
thing you know so
48:33
that's why i think it's not a bad idea
48:35
to do a little run through
48:37
and just say hey you know you're maybe
48:39
not aware of this but
48:40
you have like a bong in the frame maybe
48:43
you should like put that over so yeah i
48:48
it wasn't my client but in one of these
48:50
eviction hearings
48:51
uh we had one i was observing so some of
48:54
the
48:54
some of the hearings they let you watch
48:56
the entire gallery the entire thing like
48:58
it's just like you're in court right
48:59
there's just a bazillion people on the
49:00
screen
49:01
and some of them have individual
49:02
breakout rooms depending on how the
49:04
court runs but we were in one that
49:06
we were sitting there waiting we were
49:07
able to watch every eviction that was
49:09
happening
49:10
um and one of the defendants was in bed
49:13
smoking a cigarette during the eviction
49:16
wearing like a spaghetti strap thing it
49:19
was very revealing
49:21
and like i was like uh that's a rough
49:24
choice
49:24
there um but yeah no it was i completely
49:28
agree maybe
49:28
maybe don't have the bob marley uh weed
49:31
leaf
49:32
poster up behind you whenever you're
49:33
about to
49:35
say that you're a good parent you know
49:37
yeah
49:38
Or take down the dart board with the ex's
49:41
photograph on it
49:43
yeah there's a whole list of things that
49:46
yeah you could do wrong
49:47
so yeah it just had to be you know as
49:49
basic as possible but even if it's
49:51
you know even if it's a little messy or
49:53
a little ugly that's okay
49:55
just you know not nothing that's going
49:57
to bias people against you in
49:59
a really extreme way um yeah and
50:02
and so that well anyway that that's
50:06
enough of that
50:07
but should i, yeah you can let it go all day on
50:10
that one
50:10
yeah i mean i think we're short on time
50:12
you want to hit the
50:13
the a couple of points on exhibits and
50:15
see if we got any questions on those
50:17
yeah yeah so okay now you've got your
50:20
exhibits prepped
50:21
and you've sent them over to the court
50:23
and you've sent them to the other side
50:25
um as i mentioned that doesn't mean that
50:27
they're in evidence already i've seen
50:30
a you know a couple people think well
50:31
but i sent it already
50:33
so why why can't we talk about it no you
50:36
know
50:36
even though it's a remote hearing you
50:39
still have to
50:40
get your predicates laid and you have to
50:42
get it admitted into evidence
50:44
um now even though you've sent it to say
50:46
the court reporter or the coordinator
50:48
be aware that they're not going to
50:49
manipulate those exhibits for you during
50:52
the hearing and generally the judge
50:53
won't either
50:55
maybe once in a while a judge will help
50:57
out a pro se
50:58
like you said you know by opening up an
51:00
exhibit for them but even then i see a
51:02
lot of judges saying you know no i
51:04
i'm not going to be able to do that i'm
51:06
not going to manipulate the exhibits for
51:07
you it's up to you to
51:09
lay the predicate and then open it up
51:12
um so that's not
51:16
that hard for you to do you know like we
51:18
were talking about just have it in the
51:20
folder so that you can open up the file
51:22
when
51:22
time comes and share your screen you'll
51:24
have to ask the judge for permission to
51:26
share screen you won't automatically be
51:28
able to do that
51:30
so if you and the other party have not
51:32
agreed to pre-admitted exhibit
51:34
you'll need to lay the predicate as you
51:36
would in an in-person hearing um you
51:38
need to do that before
51:39
you admit the exhibit um and before
51:43
your your witness can testify about it
51:46
um now how do you lay a predicate
51:50
in a zoom hearing you know when you're
51:51
in person you say may i approach and you
51:54
take the paper up to the stand and the
51:56
witness looks at it
51:57
and you do the predicate and then while
52:00
you're
52:00
maybe standing there you you offer it
52:02
and then
52:03
great, it gets admitted and you move on
52:06
um
52:07
but you can't approach the witness in
52:08
the same way in a zoom hearing right
52:10
now some judges may allow you to share
52:13
your screen with the meeting with the
52:17
witness
52:18
so that the witness can lay the
52:19
predicate but i find that a lot of
52:21
judges
52:21
are not okay with that um because
52:25
when you share the screen with the
52:26
witness you're sharing the screen with
52:28
the court
52:28
and a lot of judges view that as you're
52:31
publishing
52:32
the exhibit before it's been admitted
52:35
and even when the other side isn't
52:38
actively objecting to it a lot of judges
52:40
just feel that that's improper and
52:41
they're not going to as a rule let you
52:43
do that
52:44
so that's why you want to be sure that
52:46
your witness who's going to be
52:48
responsible for laying the predicate for
52:50
your exhibit has
52:51
access to that exhibit on his or her
52:54
end um so if they have it printed out
52:58
and they have a paper in front of them
53:00
or you've gone through it with them and
53:02
they just have a list of what the
53:04
exhibits are or
53:05
they have it digitally on their computer
53:07
and they can click
53:08
over onto the tab work that out with
53:11
your client
53:12
in advance you know at the same time
53:14
that you are talking to them about okay
53:15
these are the
53:16
questions i'm going to be asking you so
53:19
that they're out like why are you asking
53:20
me
53:20
how i know what this is it is what it is
53:23
it's a text message
53:24
you know when you're talking to them
53:26
about
53:27
what predicates are and what you're
53:29
going to ask them to lay the foundation
53:31
talk to them about that logistical stuff
53:33
like
53:34
do you do you want to look at it in
53:36
advance let's give you a list
53:38
do you need a print out of it how are we
53:39
going to get the print out to you
53:41
or can you just switch tabs and look at
53:43
it digitally can you are
53:45
you have enough tech savvy to do a pdf
53:48
and look at it that way
53:50
and then once you've laid the predicate
53:53
don't forget to offer it into evidence
53:55
you know you may have your flow in an
53:57
in-person hearing where you do it while
53:59
you're standing up there
54:00
and you may get off your game a little
54:03
bit when you're doing it in
54:04
a remote hearing because you're not
54:07
positioned the same way and i've seen
54:08
people just forget to offer it into
54:11
evidence even after you know they've
54:12
done a great job laying the predicate
54:14
and it would totally get admitted they
54:15
just forget to offer it
54:17
so just remind yourself that even though
54:20
you're not
54:20
doing it in the same way that you need
54:22
to offer it and get it admitted and then
54:25
you can move on to asking the questions
54:27
about
54:27
the the actual contents of it just as
54:29
you would as in an in-person hearing
54:33
you know and i want to mention um
54:34
because even attorneys forget about this
54:36
the two-step process not only
54:37
admissibility right but then you've got
54:39
authentication
54:40
and authentication i think sometimes
54:41
it's kind of look gleaned over and not
54:42
thought about too carefully
54:44
a minor practice tip now that we're
54:45
probably going to be exchanging a lot of
54:46
documents with required disclosures
54:49
uh a great rule that i use often 193.7
54:52
of the rules of civil procedure
54:54
talks about using a document from the
54:56
opponent that is disclosed to you if you
54:58
identify it 10 days before a hearing
55:00
whether it be a temporary
55:01
or even a trial and the other side
55:03
doesn't object to you
55:05
having to introduce it uh at least for
55:07
authentication purposes it's
55:08
self-authenticated
55:10
under that it's a great rule you want to
55:11
look at 1993.7 i i use it often
55:14
uh and it's been 20 years in the books
55:16
and people don't use it as much i think
55:18
but now with these all this
55:19
documents back and forth and that's one
55:21
you know less issue to deal with you can
55:23
go right to admissibility and not have
55:24
to do
55:25
authentication at that point minor
55:27
points yeah
55:28
yeah absolutely and yeah the predicates
55:30
are the same
55:31
in a remote trial as they are in a live
55:34
trial
55:34
you know so you don't need to go through
55:36
a whole extra set of steps about like
55:38
how you converted it to pdf or anything
55:40
like that you know it's a document
55:42
and you will use the same predicates
55:45
or shortcuts like 193.7
55:49
to authenticate the document um and
55:52
then you you'll have other admissibility
55:54
issues but all of the rules of evidence
55:55
are the same
55:56
in the remote hearing as they are in the
55:59
live hearing so
56:00
you know other than just the logistics
56:02
of the witness
56:03
having access to the document it's
56:06
really not that different from what
56:08
you're used to so
56:09
you know don't worry about it it's a
56:10
little awkward at first
56:12
when you're trying to lay the predicate
56:15
with
56:15
somebody that you know what just because
56:17
you're used to doing it in a different
56:18
way but
56:19
once you've done it a couple of times
56:21
it's not that
56:23
bad you can you can get a good flow to
56:25
introduce a lot of documents even in
56:27
remote hearing and i find that you know
56:29
if you start using the tools like if you
56:31
have a pdf and you start using the adobe
56:33
tools in some ways
56:34
it's more efficient on questioning you
56:36
can if you have a large document with
56:38
certain financial information for
56:40
example that's relevant and a lot of it
56:42
that
56:43
on the same page or same document that's
56:44
not relevant you can use the
56:46
highlighting tools you can scroll
56:48
through it bring people's attention to
56:49
the the same place without people having
56:51
to
56:52
thumb through a bunch of pages are you
56:54
what page are you on
56:55
you can just direct everybody at the
56:57
same time to the same place in the
56:59
document
56:59
and use the the tools of pdf
57:03
and the the online stuff to actually
57:07
facilitate your questioning on a piece
57:10
of evidence so you know
57:12
look on the bright side it actually is
57:14
kind of an efficient tool and i'm
57:16
i'm hoping that we can have remote
57:18
hearings even after the
57:19
pandemic um i think that it can be a
57:22
really good
57:24
it can be it i feel that it enhances
57:26
access to justice in a lot of ways you
57:28
know for some people
57:29
it's going to be challenging so there is
57:31
a digital divide some of our clients are
57:33
going to be in places where
57:35
they don't have broadband they're not
57:37
going to have access to
57:38
devices and we have to be sensitive to
57:41
the
57:42
the wide variety of people and different
57:44
access that there is
57:46
but i think that for a lot of folks
57:48
including
57:49
legal aid clients um it is
57:52
actually a boon to access to justice
57:54
i've heard that fewer
57:55
defaults are being taken that people are
57:58
showing up for their hearings more
58:00
and i think you know it as a logistical
58:03
matter it's
58:04
in some ways easier for a client to
58:06
borrow a
58:07
tablet or iphone than it is for them to
58:10
get gas money
58:11
to a court that may be many miles from
58:13
their homes
58:14
so um yeah it that
58:17
is oh and also you know one last thing
58:20
about exhibits
58:21
once you're done talking about it
58:23
remember to stop sharing screen because
58:25
you know we yeah that's something that
58:28
you're not allowed to do you can't just
58:29
keep it up while you talk and also you
58:30
want to be able to
58:32
have the focus shift back onto the
58:35
speakers and away from the exhibit once
58:37
you're done
58:41
you have distractions there's the
58:42
stuart's dog for those of us you know
58:44
here on the screen
58:45
yeah sorry about that we should give him
58:47
credit what is her name is her her name
58:49
her name is
58:51
eliza okay elisa we should introduce her
58:54
in the beginning of the podcast
58:55
yeah she is now a co-host
59:00
you can tell like look on her face is
59:02
like you know i i want you
59:04
to take me out oh yeah no she yes she
59:07
just woke up from a good nap
59:08
after waking me up all night about an
59:11
hour
59:12
at a time you know that look you know
59:15
look she needs to go out now
59:16
that's for sure uh well i think we're
59:18
near the end of the podcast here belinda
59:20
i don't know if you want to add
59:21
something here or
59:23
before we, no thank you for joining us
59:25
heather there's so much great
59:26
information
59:27
in the last hour yeah and everything's
59:30
changing so yeah
59:31
we'll have to do this again one day you
59:34
know the new rules are in place and
59:35
maybe even after the pandemic there's
59:37
talk of implementing rules for
59:40
remote proceedings permanently um and so
59:44
if that happens then we'll want to take
59:46
a look at how it's going to work
59:48
when it'll be available on what terms
59:50
and you know maybe
59:52
we'll need to update this one day well
59:55
listen thank you i think the
59:56
the advice given today is going to
59:57
make it easier for people to use the
59:59
technology by doing that i think you
60:00
give certain confidence in courts that
60:02
it can't work and can't be done and
60:03
because of that i think
60:04
we're gonna be zooming for quite some
60:06
time now it won't anytime soon but
60:08
heather this is a great one thank you so
60:10
much it went pretty fast it's amazing
60:12
well yeah so informative i mean
60:14
if you can do other topic matters please
60:16
do that because you were smooth about it
60:17
and prepared please whatever you want to
60:19
talk about
60:20
yeah yeah well let me know what you all
60:21
need i like you
60:23
just about anything yeah then you'll ask
60:26
me something i'll be like i can't do
60:27
that
60:28
yes that's all good we'll bring in the
60:30
dog at that point let me know
60:32
i'll figure it out okay all right thank
60:34
you