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How to Successfully Handle Online Hearings and Trials

Lisa Kobialka

James Hannah

Kramer Levin Naftalis & Frankel LLP

Business as we know it has changed forever, and the practice of law is no exception. According to the McKinsey Quarterly report on “The Leap,” due to COVID-19, what was originally anticipated to take 10 years of e-commerce adoption was compressed into three months. As lawyers adjust to this new normal of conducting depositions, hearings and trials regularly online, it becomes imperative that best practices are followed to continue representing clients to the best of our ability. This article focuses on some of those best practices for the legal field in this online era.

There are significant benefits to presenting online rather than presenting in person. The most obvious benefit is that you can control what the audience can and cannot see. In the first online District Court case that was tried in the country, Centripetal v. Cisco, we took advantage of presenting to a camera by placing extra televisions, exhibits, whiteboards, and people behind the camera. As a result, the presenter could take advantage of having a plethora of information available by stealing a simple glance without disrupting the presentation, which would simply not be possible if the trial was conducted in person.

While taking advantage of what is behind the camera is strategically important, what happens in front of the camera is what matters most. Online proceedings need to be conducted in a professional manner, devoid of crying children, barking dogs, or package deliveries and backgrounds filled with unmade beds and clutter. If you cannot utilize your office, find a quiet, well-lit room, and set-up a green screen. While virtual backgrounds work well for day-to-day activities, a green screen provides an additional level of professionalism and avoids artifacts when you move during your presentation, or when you want to show something in your hand. Also, we recommend a virtual background that identifies who you are representing so that people viewing the proceedings can quickly identify the party who is presenting.

To ensure that you take full advantage of presenting online, make sure you practice. And then practice some more. There are so many considerations that can easily be missed if you do not test your setup. How should the room be configured to make the production flow as smooth as possible? Are the attorneys and witnesses too dark or too light? Should you stand or sit when addressing the Court? What clothing is not distracting and looks professional online? The only way to answer these questions is to treat the proceeding like a production. If you do this, you will iron out the kinks of your particular situation before presenting to the court or conducting your deposition.

There are drawbacks to being on camera instead of presenting in person. You are completely reliant on a strong internet connection and a good camera, microphone and speaker to do your best in the proceeding. If your internet connection goes down, your presentation is over. Avoid such pitfalls by having backups for everything. Not only should you have a backup camera, microphone and speaker, but you should have access to backup internet connections (Wi-Fi hot spots are essential!). Even computers should have their own separate connection to the proceeding that you can easily move to if disaster strikes.

By taking advantage of the unique circumstances that come with online proceedings, and with practice (and backups), your online proceedings should be a success. And if your proceedings are located across the country, you will enjoy the extra benefit of sleeping in your own bed after it’s all done.

For more information, check out the authors’ How to Successfully Handle Patent Hearings and Trials Online program, available from PLI Programs On Demand.

Lisa Kobialka is a Partner at Kramer Levin Naftalis & Frankel LLP. She counsels and represents both plaintiffs and defendants in complex intellectual property litigation, including trials and evidentiary hearings in numerous jurisdictions across the United States involving claims for patent infringement, trade secret misappropriation, unfair competition and trademark infringement.

James Hannah, a Partner at Kramer Levin Naftalis & Frankel LLP, is a nationally recognized patent litigator who tries cases for high-tech companies across the country. He represents patent holders seeking to enforce their patent rights, defends clients against allegations of infringement, and has obtained a variety of defensive wins for clients, including walk-away dismissals, jury verdicts of noninfringement and global settlements with no payment exchanged.

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