By Graham Sutliff

The Stay-At-Home and Shelter-In-Place Orders issued across the country have presented unique challenges in many forms.  For litigators, these challenges have required an industry that is resistant to change to adapt quickly and dramatically in order to continue to fulfill our obligations to our clients and the legal system.   We commend judges, counsel, clients, those in the legal industry, and everyone else who is taking part in learning and mastering these virtual substitutes, for continuing to innovate and keep the wheels of justice moving.

Video conferencing has become the new norm for all types of proceedings throughout Texas and the United States.  In Texas, the Office of Court Administration (OCA) secured a Zoom contract and a license is available to all State of Texas judges. Additionally, the OCA recommends that most non-essential proceedings, except for jury trials, be conducted remotely. While the means for conducting proceedings has been given, the legal community is now faced with handling the logistical details of how to effectively and professionally participate in a Zoom proceeding. Several best practices have emerged to help you present your case in the best manner.

First Things First–Setting Up Zoom For Your Practice

One of the main reasons why Zoom seems to be such a popular video conference option is its cost-effectiveness. Zoom has a free option that provides a number of features, and its subscription service is relatively inexpensive (i.e. $149.90 for an annual, single license).  In comparison, competitors such as GoToMeeting do not offer any type of free plan.

Installing Zoom is extremely easy and user-friendly. A web browser client is downloaded whenever you start or join your first Zoom meeting. On the Zoom website, any number of plugins or extensions can be installed so that Zoom can be run from applications such as Google Chrome, Microsoft Outlook, or Skype for Business. Zoom can also be run from a mobile device, such as a tablet or smartphone. As might be expected, running Zoom from a computer with a webcam or a laptop provides a richer experience over using it on a tablet or smartphone. A smartphone should only be used as a last resort.

As Always, Check for Local Rules

Before appearing in a proceeding, you should also check with the specific rules of the court. Different judges will have their own preferences on topics such as mute procedures, whether or not recording is allowed, and how to submit evidence. Additionally, as judges gain more experience with Zoom, those preferences may change over time. For instance, the 345th District Court issued procedures that include a rule about muting when not speaking and a detailed procedure on how to submit exhibits. In comparison, Judge Kyle Carter includes in his Court Decorum rules the following: “Mute Button When You Are Not Speaking, Identify Yourself Each Time You Speak, and Recording is Prohibited.” These rules may seem strange or arbitrary, but they are often the result of some surprising discoveries about Zoom. For instance, many courts are setting Zoom videoconferences to private, utilizing breakout rooms and keeping witnesses in virtual waiting rooms. This has become a necessity because of Zoombombing (a form of hacking).  Recordings are generally discouraged because the only official record of a court proceeding should be the one produced by the Court Reporter. Additionally, several courts are advising that chats be avoided altogether or prohibiting private chats. This is in response to the discovery that messages that were sent in a private, person-to-person mode, can actually be viewed by anyone who downloads the transcript from Zoom.

Three Ways to Improve your Presentation

1. Backgrounds

It is important to have a clean and professional looking background when engaging via Zoom. This is necessary for both depositions and court proceedings since deposition recordings may be introduced later during a hearing, and court proceedings are often livestreamed to YouTube or Facebook to ensure the public has access under the Open Courts Provision of the Texas Constitution. You don’t want people thinking about what is going on behind you and not listening to what you have to say.

With this in mind, you have several options.  You can look for an organized, clutter-free space in your home that can be your background.  Alternatively, as a way to improve your presentation or the presentation of your witness, you can use a virtual background through Zoom.  For depositions, assuming it is your witness, be sure to give some thought about the witness’ background.

If you want to use a virtual background, you need to test it to see if the space you want to use will need a green screen. A cluttered background makes it difficult for the technology to differentiate you from what is behind and around you.  In this situation, you will need a green screen to use a virtual background.  There are many options for purchasing a green screen online, but you can also purchase inexpensive options like a green poster board or make your own screen by painting a sheet or piece of cardboard.  Also, be sure that your clothes are not the same color as your background (e.g. green shirt with a green background) or you will become the invisible person.

The process of adding a virtual background is very easy and you can add anything you think would look the best.  To help, we have created a photo gallery of professional, license-free images that you can download and use for yourself.  Click here.  We have also set out instructions on how to download and upload the images to your Zoom account.

2. Submitting and Presenting Documents

For court proceedings, each court will likely have its own rules about how to present documents. Some courts have used Dropbox to allow attorneys to share evidence, but many others prefer email. Be sure to call the Court prior to your hearing to determine how the Court handles the presentation of evidence.  Some judges can manage the exhibits themselves and share their screen on Zoom when exhibits are used. If, on the other hand, you are required to present your exhibits, then you need to know how to share your computer screen and how to direct people’s attention to the parts you want.  An app we find helpful in the presentation of evidence is Snagit.  This app allows you to easily cut and paste from documents and zoom in easily.

When it comes to depositions, we suggest coordinating with the videographer beforehand so they can verify that they have high-quality, clean copies and that they will be able to zoom in on relevant portions of exhibits as needed.  You should also familiarize yourself with Zoom’s ability to share your computer screen so you can present documents on the fly during the deposition.

3. Technical Capabilities

In order to make sure you have high-quality video and audio, you will need a strong wired or WiFi connection, so you may need to experiment in different parts of your home to find the strongest signal. Attorneys should also try to find a quiet place where ambient noise will be at a minimum (think rooms with carpet or rugs and rooms with no echo). If available, using ear buds with a built-in microphone provides a better listening experience, reduces background noise and allows others to hear you better. With respect to lighting, you want the room to be well lit.  Lamps are helpful and, when available, should be placed evenly with or a little behind your camera.  Avoid having bright lights in the background because such light will create problems for the camera.  As for the location of the camera, try to have it eye-level so that it appears that you are looking at the other individuals on the conference.

Even with the best preparation, it can be difficult to anticipate how your Zoom video conference will behave on the day that you need it. Associate Judge Aurora Martinez Jones suggests that you try to avoid Zoom “traffic,” if possible, by requesting or setting a start time that is mid-morning or later. She also recommends that you have a number of backup devices available in case your audio does not work or if you need to have private attorney-client communication. If you do end up using multiple devices, make sure to label them all properly when logging into Zoom using your first and last name so that they can be easily identified by the host of the videoconference. If only a phone is used, provide the host with your phone number ahead of time. If you are the host of a Zoom video conference, it is recommended that you ask all participants to log in early to iron out any technical difficulties.

Judge Dimple Malhotra also has a number of suggestions to ensure successful Zoom video conferences. If there is time before the official start time of the hearing, be sure to turn your video off until it is needed. She also encourages attorneys to be aware of issues of access. Not all participants have the capability to use Zoom. Some clients may not have a compatible device or internet access, and you should be prepared to come up with alternative arrangements.

 

Proper Preparation—Be Sure to Test Your Setup and System Before Any Hearing or Deposition

After installing Zoom, users should test out the functions in Zoom by going through the various options and setting up a videoconference with a friend or colleague. When setting up this test, be sure to record the test session so you can go back and watch the test so that you will understand what others will see.  You want to familiarize yourself with the basic functions such as different view options, mute, and chat. Depending on the device used and the form of Zoom interface, certain features may not be available. For instance, some devices may not have the video capabilities to utilize virtual backgrounds. Finally, attorneys should practice working with the different video and audio options, as well as how to use screen sharing and documents.

With these best practices in mind, combined with patience and learning from experience, Zoom can be a powerful tool to help courts and attorneys continue their important work.

 

---

About the Author

Graham Sutliff is the co-founder of Sutliff & Stout, Injury & Accident Law Firm.  Graham is Board Certified in Personal Injury Trial Law, and he has been actively trying personal injury cases for over fifteen years.

by Robert Pelton

In the spirit of the Christmas season and to remind our members never to give up on any motion, we want to share this motion with you and discuss some points on Motions for Continuances in State court. In the case of this motion, three other motions had already been filed and denied. In an act of frustration and desperation, we filed this one below, which was granted. In the motion, only the defendant names and case number have been changed. This has been published previously, but for those who may have missed it, I hope it brings a smile to your face at the end of a hard fought year for your clients.

Download (PDF, 48KB)

_____________________________________________________________________________*

Epilogue:  Once this motion was granted, it gave us sufficient time to complete our preparation of the case in a proper manner. Because we had additional time, we were able to adhere to our duty bound ethical oath: to zealously defend our client. Facts helpful to the defense are always hidden at the bottom of the well. That digging takes time and tenacity.

Time is the most valuable commodity to lawyer. Abraham Lincoln said that “A lawyer’s time and advice are his stock in trade.” If time is used wisely, our clients benefit. We all need time to work on our cases and explore all possible defenses or punishment options. We never have enough time.

On the flip side, judges and prosecutors want to move the docket. Prosecutors’ caseloads are huge and the statistics of open cases in their court are ever present on the mind of our judges. As defense counsel, we must be the gatekeepers to ensure our clients receive their right to effective assistance of counsel based on a thorough investigation of the facts. Without those facts our client cannot make his or her decision to move to trial or prepare for mitigation. This takes time. It is your job to get that time.

One Harris county judge who has since departed, bragged that if a judge was still in court after twelve noon, he was not doing a good job. I was in court the day he made the statement to a local television reporter named Wayne Dolcefino. I told the judge to remain silent; but he like many let his alligator mouth override his humming bird ass. It was on the 6 o’clock news. He told me the next day he would listen to me the next time. The next time never came because he was defeated in the next election and his comments made great propaganda for his opponent. An arbitrary “rocket docket– move it along mentality” goes against the grain of our justice system to the detriment of the citizen accused.

All lawyers know that a continuance usually works in favor of a defendant, but it is routinely used by the defense as well as the state in accord with Article 29.03 of the Texas Code of Criminal Procedure[1] . By and large, most continuances are reached by agreement with the State. When necessary, a well drafted Motion for Continuance should contain exhibits. If the exhibits involve personal or confidential information, request an in camera inspection by the Judge in your motion. Never underestimate the power of demonstrative exhibits. A picture is worth a thousand words. Don’t be shy. In the event your motion is objected to, and a controverting motion is submitted by the state, pursuant to Article 29.09[2] of the Texas Code of Criminal Procedure, your motion and your exhibits must stand alone to win the day. Do not rely on a stellar oral argument to get you by. Article 29.10[3] makes it clear the testimony shall be made by affidavit. If the continuance has become the 900 pound gorilla in the courtroom, use technology readily at hand. It is amazing how fast a motion for continuance will be granted when you have a photo of a swollen, bruised, battered or bleeding body part.

Happy Holidays and Best Wishes for the New Year.

 

---

[1] Texas Code of Criminal Procedure-Article 29.03 Sufficient Cause

Art. 29.03 FOR SUFFICIENT CAUSE SHOWN. A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown, which cause shall be fully set forth in the motion. A continuance may only be as long as is necessary.

[2] Texas Code of Criminal Procedure-Article 29.09 Controverting Motion

Art. 29.09. CONTROVERTING MOTION. Any material fact stated, affecting diligence, in a motion for a continuance, may be denied in writing by the adverse party. The denial shall be supported by the oath of some credible person, and filed as soon as practicable after the filing of such motion.

[3] Texas Code of Criminal Procedure-Article 29.10 When Denial is Filed

Art. 29.10. WHEN DENIAL IS FILED. When such denial is filed, the issue shall be tried by the judge, and he shall hear testimony by affidavits, and grant or refuse continuance, according to the law and facts of the case.

   

by Patrick F. McCann

I confess I enjoy the holidays. It is the one time of year when people try to treat each other the way we should treat each other all year. One wishes the best for one’s fellow men and women, and hope can actually be felt. Selfishness is just a little less palpable in the air. So, here, in the spirit of the holidays, is a gentle wishlist for our colleagues across the aisle in the courthouse, and for their boss, the elected District Attorney. The office has faced, as all the county has, some unique challenges across this past year in the aftermath of one of the greatest storms in the history of Texas. Under the District Attorney’s guidance it has also overcome many of these challenges. So now that there is a new “quasi-normalcy” to the proceedings in our courthouses, here is my wishlist, for both the office, the DA herself, and the friends and colleagues who inhabit the same court space with our part of the bar.

I wish for the time for her senior staff to finally implement the policies I believe they believe in. By that I mean working out thoughtful, measured and new ways to deal with drug and mental health diversions from prosecution, ensuring that juveniles do not get arbitrarily sentenced to life in prison, and the truly thoughtful use of severe charges against people who are minor participants in crimes. I mean a reduction in numbers and severity of sentences, and a true embrace of community supervision. I wish for a recognition that while prisons exist, they do little to help people re-gain their lives or re-enter our society. I believe that Harvey has kept this office from truly getting to implement these programs, and I wish the DA and her staff the time and inspiration to do what they came here to do, i.e. reverse the decades of cowboy culture and ill-informed “tough on crime” stance that was felt largely by the poor, the mentally ill, and those who were not white. It is time for meaningful policies to be announced and implemented, and I wish them well in tackling these issues.

I wish that the Assistant District Attorneys who have stayed with the office during this period are rewarded with the kind of positive training and in-depth legal education that they deserve. When one is trying to stay afloat in dangerous waters, training does often go over the side of the boat. Training, the kind of national training available through non-profit organizations and the department of justice, is an investment in the young lawyers and assistants who are the future chief prosecutors in our state – it is an investment that returns ten fold as it helps good lawyers spot bad cases and dispose of them. I wish that training once again resumes its priority now that the basics of office space and organization have been met.

I wish that for all our young colleagues in the Harris County office that attention to their desire to have and raise families be finally given more than lip service. In a time of modern technology there is no reason flex time and remote work cannot be done and implemented in many parts of the District Attorney’s office. While dockets must be met, there is no real reason to run a modern office as if it were still the 1950s. Networks exist for collaboration across distance, and there is no reason not to permit, for instance, those with child or parent care issues not to work remotely for periods of time or to have flex hours that allow them to tend to family while serving the public. The loyalty shown by the staff of this office has been great; they are owed modern flexible work environments in return. It will increase retention and produce a more productive work force.

I wish them a better budget, both for technology improvements and for support staff. It serves no public interest to have an online portal for uploading evidence that does not work reliably nor is capable of holding all the evidence in a complex case. Nor does it serve anyone to have insufficient staff to upload and distribute this evidence onto such a portal even if it worked properly. It helps no one, from law enforcement to crime victims, to not have sufficient interoperability between systems, or old or antiquated technology that does not work together. I wish true improvements in their budgets for those things this year.

Last, I wish for all the staff at the DAO to have a chance to relax and reflect on their accomplishments this year. They have survived and managed in a time of chaos. We all have been perhaps a little kinder with the shared burden to each other. Let us not lose that spirit this coming year.

Happy holidays to all of our friends at the Harris County DAO.

Patrick F. McCann
Law Offices of Patrick F. McCann
700 Louisiana St.  Ste 3950
Houston, Texas 77002
713-223-3805