COMMENTARY: Virtual hearing best practices for Family Law

By Roquia Draper

While some courts held virtual hearings as a matter of practice prior to March 2020, many courts still utilized in-person hearings. With the current emergency orders in place requiring citizens to stay home and limit in-person gatherings, many courts have found innovative means of providing public access to justice, while limiting traffic in courthouses. This has resulted in sweeping changes in procedures with many courts now performing virtual hearings via Zoom as a regular practice.

This technology is being used as a short-term solution for conducting family law hearings and conferences, but it is predicted to be the way of the future as many courts will continue to utilize this technology long after the COVID crisis is behind us. Virtual hearings are a significant adjustment for our clients. Attending a hearing in-person can already be a stressful experience for litigants, let alone the anxiety surrounding the addition of new technology.

Here are some pointers to ensure you are prepared for your Zoom hearing and that your experience is as seamless as possible.

Pre-Hearing Considerations

• Ensure that you, as the client, have the proper technology available (a laptop or other compatible device) and internet services available to download and use Zoom. If you do not have the technological capabilities to participate by Zoom, you may still appear telephonically.

• You will be required to provide your email address to allow the court to send you details of the Zoom hearing. If you do not have an email, you will be provided the telephone number and access code to join.

• Do not forward the Zoom information to your family or friends. People will not be able to access the meeting unless permitted by the court.

Things to Think About the Day of the Hearing

• Dress code still applies as it would if you were attending an in-person hearing before the court.

• Ensure you have a private area in your home that is free from distractions and disruptions.

• Set your device so that the webcam is positioned at eye level and the background is free from distractions (choose a background that is as plain as possible).

Participation in the Hearing

• This hearing will either be recorded for public viewing or live-streamed. This means that everything you say will not only be heard by the participants of the Zoom hearing, but will be available for anyone to view.

• It is equally important that when you speak, you speak slowly and wait until prompted by the court or your attorney. Technology makes it difficult to determine when a person is finished speaking or when another has started. So, wait a few seconds before speaking. Courts have the ability to mute individuals who continuously interrupt others, so practicing beforehand on Zoom to gauge pauses, listening and speaking could be helpful.

• When speaking, look directly at the camera rather than at the screen. People like myself, who like to look other people in the eye when speaking to them, are at a disadvantage here, but in the case of technology, looking someone “in the eyes” means looking at the webcam.

• When signing up for Zoom, refrain from using your phone number or other identifying information (other than your name) as the username, as it will show up on the screen during the meeting, which means it is also available for the public to view.

Procedure During Hearing

• When you click on the Zoom link sent by the court, you will be placed in a virtual waiting room until your case is called. Be prepared to wait until you are connected to the courtroom to have your matter heard.

• Most courts follow the procedure of calling the case and getting everyone’s properly spelled names for the record. The court will next obtain consent to conduct the hearing via Zoom rather than in-person and inquire as to whether there are any obstacles to conducting the hearing via Zoom. By this point, after reading the tips above, you should be ready to proceed.

• During the hearing, you should not be shuffling papers, drinking coffee or talking to others. This is a hearing just as if you were in court. Not only is it disrespectful to the process, but it is also distracting. You may choose to mute yourself until you are ready to talk if there is a concern about the noise level at your location. You will still be able to hear the proceedings.

• If your attorney needs to speak with you confidentially, they will ask the court to pause the proceedings and create a separate “virtual breakout” room in which the only participants are you and your attorney. This virtual breakout room will allow your attorney to discuss confidential information with you. These discussions are off the record and private, as if you were sitting in a room with your attorney only. You may either request to go back to the main courtroom when you are ready, or the court may prompt you to return after a certain amount of time.

• These online hearings often offer a chat feature for sending private messages to others during the proceedings. While the chat feature allows you to send a message to everyone, send a message to the host or send a private message to a particular person, the chat option is defaulted to send a message to everyone. This default setting can be a source of trouble for some so I would not recommend using it unless you are having technological issues and need to inform the court. It is very common to be nervous during a hearing, and you do not want to accidentally send a chat message to everyone that you intended for your attorney only. So, my best recommendation is just to avoid it altogether.

• Once the court has ruled on your matter, remember to click the button to leave the meeting (although the court should end the meeting). Do not continue to speak to your attorney or the judge as the matter is completed. You can always leave the hearing and call your attorney afterwards to discuss, just as you would if you were attending in person.

Following these practices will ensure you have productive involvement in your case that is not exacerbated by the inescapable stress of technology, as we all adjust to what will certainly be the future of our legal system.
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Roquia Draper, of Warner, Norcross, & Judd,  advocates on behalf of her clients in both family law and in business contract disputes. Draper also has experience in representing professional clients in complex family law matters involving executive compensation packages, business valuations and complex asset division. Her primary focus on domestic relations allows her to impact her clients’ lives during a very difficult time by being their strongest advocate while providing reasonably aggressive but measured advice.