Before the pandemic, I had almost never used Zoom at all but I have now litigated numerous virtual hearings. If the past year was good for anything, it at least forced me to learn how to take depositions and put on proof over Zoom. Virtual litigation offers many benefits, especially efficiency and convenience, but it is exhausting in every sense of the word. When litigation is already exhausting in normal circumstances, this impact cannot be taken lightly.
Even as we begin to come out of the pandemic, I think its fair to say that virtual litigation options are going to persist even if they are not so common as they have been in the last year. So, you may wonder if there are any tips or tricks for making virtual litigation a little less painful. Several lessons from my own mindfulness practice helped me stay steady during virtual hearings and they might help you too. Here are my tips:
1. Remember Your Limits
One of the first mindfulness lessons I learned is one that many of us lawyers often forget: we are not just brains. We have bodies. Those bodies have needs and limits. When we don’t respect those limits and honor those needs, our performance suffers and we experience a lot of needless pain. The way I handled this when litigating cases remotely was to be conservative in scheduling the cases on the front end. Rather than try to power through with 8-10 hour days on Zoom, we opted for ½ days spread out over time. While I was initially concerned that we wouldn’t finish even with the days allotted, we ended up finishing the proof early because we were conscious of time every day. This reduced the need for multiple breaks and allowed us all to avoid the fatigue and problems that came with prolonged time staring at the computer. Even if you can’t schedule a case this particular way, think practically about how long you can tolerate Zoom litigation as you set the schedule because remembering your humanity in scheduling will help the case go more smoothly.
2. Pick Your Battles
Another lesson my mindfulness practice taught me is that fighting is often unnecessary. Stipulations are essential for managing many hearings and trials to avoid wasting time on undisputed things. When you add the logistical complications of virtual presentation to the mix, that sentiment is even more important. In addition to stipulations of fact or evidence that could make things go more quickly, consider setting procedures or developing plans to make sure everyone is on the same page for the hearing. It may even be useful to hold a dry run with counsel for all parties to ensure that everyone is familiar with the platform you are using. While it may seem foreign to work closely with your opponent in this way, you may find that letting go of fights about minor things can help you all focus better on the disputes that really matter.
3. Plan for Disruptions
Anyone who meditates knows that disruptions happen no matter how much we try to avoid them. Likewise, anyone who has tried a trial or lengthy hearing knows that they almost never happen without a hitch. Prepare yourself for the disruptions. Have a plan for technology issues. Try to develop schedules of witnesses to avoid lag times if testimony goes quicker or slower than expected. In addition, it generally helps not to be a jerk about your opposing party’s situation because it will eventually happen that you are the one who needs the mercy. In one of my virtual hearings, I learned an hour before testimony was set to start that my daughter was required to quarantine due to a close contact at school. I was fortunate that my client, opposing counsel, and the hearing officer granted me a postponement for that day so I could pick her up from school. If my relationships had been less cordial, however, I may have gotten a different result.
4. Slow Down. Then Slow Down Some More.
Rushing is something we all do, especially when we are stressed, but my mindfulness practice has helped me notice it, slow down, and respond more skillfully to life. For most of us, hearings are going to make us stressed whether they are virtual or not. When you present virtually, everything goes through a filter so rushing can quickly become disastrous to your case. To avoid this, remind yourself as much as possible to slow down. Come back to your breath frequently or do a quick body sweep (check your brow, eyes, jaw, neck, shoulders, chest belly, hips, hands) to return to your body. If you are noticing the signs of tension or quick or shallow breathing, try to relax your body and open up your breath. You can do those things in a second or two and it can help keep you steady, focused, and even as you ask questions and present proof.
5. Get Some Rest.
Finally, another important mindfulness lesson is the importance of rest. When we let our attention settle on the breath, we give our minds a chance to stop trying for a moment. For us achiever types, even a little bit of rest goes a long way. When you sit in front of a glaring screen all day and have to listen intently to less than great audio, you need to check in with yourself after and give yourself a break. That likely means an activity away from your computer with some different sensory input. Your normal exercise or relaxation routine might be enough, but I found that I needed to pull out all the stops for my weeks of virtual hearings. In addition to normal exercise, I needed some extra yoga sessions, warm baths, and any time outside that I could get. When you are in a trial or a hearing, it may be tempting to dive right into your inbox piling up with emails but a well-timed break may make your efforts less painful and more efficient.
I hope we are leaving the COVID-19 era of social distancing but I think the brave new world of virtual litigation is here to stay. Litigating cases remotely presents its challenges to be sure, but the lessons from our mindfulness practices can help us to reduce suffering on Zoom in the same way that they help us to reduce suffering in our lives. If we remember to care for ourselves and bring awareness to the unique challenges and opportunities that virtual litigation presents, we can then focus our whole attention on getting great results for our clients.