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Law360 (May 14, 2020, 5:04 PM EDT) --
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| Tara Kaushik |
But — having recently survived my first virtual evidentiary hearing before a state energy commission, and with the benefit of hindsight — it's like everything lawyers do for the first time in our practice: It's a challenge, until you do it. And like the first oral argument we made or the first hearing we ever litigated, we learn lessons and improve each time.
We will likely face more than a few virtual hearings, given the current pandemic and shelter-in-place orders. Currently, many state regulatory agencies have postponed evidentiary hearings, or scheduled briefs and telephonic oral arguments to narrow the issues requiring hearings.
But that can only last so long, given that utilities, power grid operators, pipelines and other energy companies have to continue doing business as essential services. The following are some practical tips I learned to manage the challenges of a virtual hearing.
Schedule time to prepare your office setup at home.
Is your workstation sufficiently comfortable for you to sit for hours at a stretch and access documents quickly? You may want to check whether your printer works well enough not to jam when printing more than five pages in a pinch. You will want to make sure you are well placed away from distractions such as family and pets.
You may also want to use a wide table to set up your papers and laptop(s) (I found more than one useful: one for typing and accessing documents, and the other purely for the camera). It also helps to check your Wi-Fi connection to minimize the likelihood of disconnections during the hearing.
Don't forget to download the application to be used for the hearing — and test it a day or two before the hearing.
Ask the judge to schedule a prehearing conference for the parties to discuss hearing procedures.
It helps to know ahead of time whether you will need to register or download applications for the hearing; whether there will be telephone or video conference access; how the commission will handle public accessibility to the hearing; and how to share documents or present slides.
Find out if the commission will agree to use a better online platform for the hearing.
If your client and other parties are willing, you may ask the judge if the commission is comfortable with the parties splitting the costs to use a more stable online platform for the hearing, to minimize the risk of technical glitches.
It also helps to ask that everyone, including commissioners, counsel and the judge, turn on their video capabilities. This will allow everyone to see facial expressions and body language, and pair voices with faces.
Video is useful for cross-examining witnesses. But it may not be useful to you if you are defending a witness who does not present well on camera.
Make a plan for working with exhibits.
Strategize in advance with the parties and judge on how to handle marking exhibits. If possible, mark as many exhibits as possible in advance.
Have ready at your fingertips any exhibits you need to introduce in rebuttal at the hearing, and arrange with the judge in advance how those exhibits will be transmitted to the court reporter and circulated to all counsel.
Determine the order in which parties will present.
Energy regulatory agency hearings often involve multiple parties. Strategize with the parties and judge ahead of time on the order in which each party will present their case.
It is also useful for the court reporter if you plan ahead of time how you will indicate that you are finished speaking about an issue, so people do not speak over each other too often. (For example, during my hearing, each person who spoke would say "over" at the end of their statement to indicate they had finished.)
Raise due process concerns as early as possible.
Strategize with the judge on how witness cross-examination and commissioner questions will be handled, how objections will be handled, and how parties must not email or text their witnesses while the witnesses are on the virtual "stand."
Be prepared for technical difficulties.
Discuss with the judge and parties ahead of time how to handle technical glitches and unforeseen interruptions — such as when a party drops off the video conference or phone line inadvertently, someone cannot be heard when trying to unmute the line, or echoes occur.
Plan beforehand how to confer offline during the hearing.
Work out in advance how you can confer offline with your client, your witness or co-parties' counsel in sidebar conferences while the hearing is in progress.
You may want to make sure you have more than one phone in the room — or a separate laptop with a separate video conference set up for strategy meetings during breaks.
Take longer-than-usual pauses after speaking, to allow for questions from the judge or commissioners.
Prepare your witnesses to do the same, in case you need to state an objection. Given the need to unmute yourself, it may take longer to interject than it would if you were in a hearing room.
Expect that delays and glitches may happen.
Nothing compares to the experience of human interaction in a hearing room. It may help to ask the judge in advance whether the parties will have the opportunity to submit briefs after the hearing, or whether counsel may be allowed time to prepare opening and closing statements to promote due process.
Each regulatory agency has different preferences and rules, so it always helps to familiarize yourself with the evolving rules for remote hearings.
Tara S. Kaushik is a partner at Holland & Knight LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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