On March 31, 2020, the Judicial Conference of the United States temporarily approved the use of video and teleconferencing in lieu of in-person proceedings in response to COVID-19.[1] This seemingly routine approval was possible only after the Conference separately authorized a narrow exception to its broadcast / cameras policy, determining that “emergency conditions due to the national emergency declared by the President . . . will materially affect the functioning of the federal courts[.]”[2] Under the CARES Act,[3] the Conference’s finding allowed the chief judge of each federal district to authorize remote conferencing for certain criminal proceedings and civil proceedings alike.

The Tennessee Judiciary acted even earlier and more drastically. On March 13, 2020, the Tennessee Supreme Court suspended in-person proceedings in all state and local courts across the state.[4] Although the high court allowed for certain specified exceptions to the suspension—as necessary to, for example, “protect the constitutional rights of criminal defendants”—it urged “judges and court clerks to “utilize[e] available technologies, including alternative means of filing, teleconferencing, email, and video conferencing.”[5] Later orders eased initial restrictions but retained a commitment to using video conferencing and other “available technologies” as alternatives to in-person proceedings.[6] 

COVID-19 shows no signs of slowing down.[7] And as a result, video court proceedings may be here to stay. Here are three basic tips for lawyers in this brave, new remote world:

TIP #1: Be Professional.

Court conferences, hearings, depositions, and trials that proceed via Zoom, Webex, Skype, and other video-conferencing platforms should be treated with the same level of respect and professionalism as in-person proceedings. Buttoned collars, ties, blazers are still the standard. And remember that while the “COVID mullet”— business on top, pajamas on the bottom—may be comfortable, it is not professional. Quite a few videos and memes of pants-less lawyers “caught slipping” (forgive the pun) have been making the rounds since March. At least one lawyer forgot to wear a shirt![8] Try not to join their ranks. You may need to stand, adjust your camera, or retrieve documents from another desk or office. Any one of these exigencies could end in an embarrassing unintended revelation. So be professional from top to bottom, without exceptions. Also, mind your filters: That beach vacation background may send a message that you do not intend.

TIP #2: Be Prepared.

The luddites among us no longer have the luxury of ignoring things like bandwidth, hotspots, and end-to-end encryption.[9] Just as the courts must employ “available technologies” to limit in-person proceedings, so must the lawyers who appear before them. Other logistical challenges, such as presenting and authenticating exhibits; coordinating between counsel and witnesses and court reporters who may be in different rooms, cities, or countries; accounting for differences in time zones; making sure everyone can see you (camera and lighting check) and hear you (mic check); and remembering to mute—and unmute!—as appropriate—must be anticipated  and worked through in advance. Legal and ethical obligations may look different in a remote world, but the obligations themselves remain the same, and counsel must be prepared to discharge them via Zoom as responsibly as they would in a courtroom. Consider having available all documents in hard copy and electronic formats, filing and emailing documents to the court, court reporter, and opposing counsel earlier than usual, and tabbing or otherwise noting the specific pages and paragraphs of each document most critical to your case. Remember, too, to prepare your witnesses for the relevant remote protocols. You would not want to remember to wear slacks only to have your witness appear in PJs!

TIP #3: Remain Flexible.

Several months into this pandemic, everyone is still learning. Technologies, however available, are not always as reliable as we would hope, and surprises like broken screens, missing batteries, and sick children, many of whom are home around the clock now, cannot be avoided.  But being professional and prepared makes it a lot easier to be flexible.

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At the end of the day, the post-COVID world is not all that different from the old one when it comes to lawyers and courts. Being professional, prepared, and flexible will hold all of us in good stead whether we remain remote or return to the way things were.