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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Transcript

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