It’s obvious when someone is coaching a witness in a virtual setting.  Prepare properly before.  Be smart and don’t fall afoul of this trap during.

Per several judges in a recent panel, technological glitches are common. Test, test, test! Bring your clients into the process when they are going to be involved. It’s the classic case of an ounce of prevention instead of a pound of cure. You don’t need your case to go off the rails because of something like that!

From a recent judicial panel:  Be aware that contemporaneous objections during virtual hearings may not be possible.  Be patient and remain calm.  Work with the Court and staff to get your objections into the record.  A pre-arranged on-screen signal might be appropriate.

Per Circuit Court Judge Yvonne Colodny: When attending a video hearing, if you are on time, you are late! Arrive early to make sure all electronic issues are resolved before the hearing is scheduled to begin. Be prepared for tech glitches. Where clients are to participate, have them arrive early as well. And practice with your clients beforehand. All of this can make a huge difference in the effectiveness of your presentation and in having a timely and professional hearing.

Here I repeat one of my very favorite Tips.  I present it annually as the first post-Labor Day Tip.  I only wish I had been there!  Thank you, Judge Altonaga for sharing.

Expert Witnesses

9/9/2020

Do a thorough background check!  At a DCBA Bench and Bar Conference, Federal District Court Judge Cecelia Altonaga shared a rather memorable incident which occurred in her courtroom.  An expert witness gave a lengthy, erudite presentation.  Opposing counsel’s first question on cross:  “Does your probation officer know you are testifying here today?”

When drafting mediation settlement agreements, to the extent possible never, never leave any loose ends. After a long, tiring session often someone may suggest just setting down bullet points, with a formal agreement to be hammered out by the attorneys in the next few days. Don’t do it! Mediation involves a process where things happen that will not be repeated before or after and indeed, will often be repudiated when the spirit of compromise evaporates. The most innocuous step may be seized upon by a participant who has a change of heart. This results in an enormous waste of time, money and energy. No loose ends!

Think twice about insisting on an in person hearing. Per 11th Circuit Administrative Judge Jennifer Bailey in a recent Dade County Bar Association sponsored Bench and Bar conference, no one should count on in person hearings in the Circuit Civil Division for the foreseeable future. Courts are unlikely to permit attorneys to indefinitely delay their cases. Given the anticipated post-pandemic caseload, attorneys will need to move their cases.

Keep your cool! Occasionally problems will arise. Everything has changed so much in such a short time, it is unavoidable. At all times be polite and professional to the clerks, the judges and their staff and opposing counsel.

Sometimes an opponent’s unreasonable behavior will be rooted in a desire to please a client or colleague. You may be able to move forward by “building a golden bridge”; i.e., framing their retreat from a hardline position as movement to a better solution. You might ask for your counterpart’s ideas and add to them rather then trying to promote your own.*

* My thanks to William Ury in the Harvard Program on Negotiation for the thoughts shared in this Tip.

You’ve seen Tips about anchoring. The effect of an anchor may be increased by presenting a draft settlement agreement at the beginning of the mediation which includes the anchor.

My thanks to the Harvard Program on Negotiation for this thought