Zoom Markman

Kinda sounds like a super hero, doesn’t it? I’m spectating on Judge Albright’s first one this morning, and have a couple of pointers for attorneys. Maybe more than a couple.

First of all, I’ve watched this judge’s Markman hearings live, by phone, and now by video, and video is incomparably better than phone. The ability to tell who’s speaking and to see what they’re talking about is a huge benefit over a phone. Plus the judge can direct the presentations better, and everyone can see when someone hasn’t unmuted their mic (and you are so busted when you haven’t). But the sound quality is so, so much better than telephonic. And it’s far less fatiguing than telephonic. (Did I say Markmans are fatiguing? Perish the thought).

But I have a few pointers based on seeing this morning’s.

First, you can dial in from your phone, but the sound isn’t always great, and the image often isn’t either (even if you have wiped the screen down to eliminate sweat and/or makeup). If possible, run it from your desktop with a good webcam (it includes a better mic). Which helps with the next item as well.

Second, pay attention to angle, both vertical and horizontal. Put the camera at eye level and talk into it. Don’t lay it on your desk and do the dreaded wattle-cam, especially via cell phone. (Speaking of which, do you miss Ally McBeal? I miss Ally McBeal). Not all of us look like a kaiju with digestive issues, but it’s not flattering, and more important, not persuasive. (Again, citing McBeal, unless there’s a wattle issue, but that’s probably a pretty narrow slice of your audience).

Also, align the camera horizontally so you can be looking into it, not offscreen at your desktop. I just saw a lawyer announce and she looked directly into the camera and spoke right at me and it was just terrific. I felt like we were actually having a conversation. Of course I was muted and had my video off, so it was borderline stalking, but still …

If you’re using Zoom in a desktop, put the Zoom window close to the camera as I have here, so that when you’re speaking, you’re looking into the camera. Obviously you don’t have to have a print actually signed by Dick Best behind your monitor – local rules permit anything by prominent nautical artist R. G. Smith.

Note here that Mr. Wang, who’s displaying next-level screen sharing skills by using a “virtual ELMO” to share sections of briefing and depo cuts, is presenting directly into the camera, even though his screen is to his left of the camera.

One thing Judge Gilstrap’s system (which is not Zoom) does is keep the judge’s window in the same place at top right through the call (the “speaker view” rotates through the attorneys, but the judge’s window is static), so I align my webcam with that window so when I’m addressing the court I’m looking right at him. The window is very small, so nonverbal cues are limited, but I can always see him.

That’s not always the case with Zoom – you may be able to see Judge Albright during the hearing and you may not. Not that you absolutely need to, but if the judge is in chambers and not on the bench you may pick up important nonverbal cues, like when the judge looks offscreen at their law clerk and says “WTF?” Not that I’ve ever actually seen that of course, but it could happen. And maybe I read lips wrong.

Also, get the camera the right distance. Not so close that we’re looking up your nostrils, nor so far away that there are things more interesting than you in your background (which happened today – enjoyable, but a distraction). That also tends to detract from the sound quality. A good balance is probably when you look like a TV newscaster – you’re clearly the most important thing in the picture, but you don’t look like you’re taking a selfie (for those of you under 40) or Ernest P. Worrell (if you’re over 40). Know what I mean, Vern?

Third, because I control the numbering, pay attention to your mic. Default position is off, so your instinct should be to turn it off as soon as you finish speaking. Forgetting to turn it on is harmless error. Forgetting to turn it off may not be, and everyone can see when you do mute it. That’s not the case with telephonic. You can blame the dog all day long and no one can pin it on you.

A related point is to never forget that you’re on camera, and the hearing is likely being recorded, so even more so than in a live hearing, remember that eyes may be on you, and there may be a record other than audio. Paranoia is your friend (even though it can’t be trusted either).

Fourth, if you’re going to be presenting, practice your skills sharing your screen so you can efficiently put up slides and any other materials. Today’s hearing with Judge Albright was the first I’ve been in where the sharing worked almost perfectly, and it really helped being able to look at razor sharp Power Point slides alongside the presenting lawyer. Better even than in the courtroom. Bonus points to Philip Wang for using the screen-sharing as a “virtual ELMO” so he could pull up excerpts from briefing and depos as needed. But at the very least, clean up your screen so that if you inadvertently go through it to get to your slides or documents you’re not sharing that DOCUMENTS TO DESTROY folder on your desktop. Or the Philadelphia Eagles wallpaper (which would obviously be worse).

But have a backup plan – in either court you’ll have submitted slides ahead of time, so if sharing doesn’t work – and I have had it not under one of the current systems – just start referring to your slides by number. You did number your slides, didn’t you?

Fifth, pay attention to the name on your screen. It should, of course, be your name, both first and last. Proper capitalization would be nice as well. “mcsmith” is not all that helpful, nor is “austinsoccermom74”. But consider adding who you represent so the viewer can easily tell what your role is. For example, mine might read Michael Smith – Defendant Acme Brick. We are often blind to the name on our own screen – but it’s an important part of what viewers see, so use it like the tool it is.

Finally, what about dress? The answer is that it varies. With Judge Gilstrap, for example, courtroom attire is unchanged, so coat and tie. Judge Albright is happy if you’re wearing a tie and doesn’t expect jackets. The court staff can tell you ahead of time, but it’s okay to pretend that you always wear a suit for calls in your garage.

Personally, I dispense with coat and tie when I do them from my model workshop – but I reserve that for State Bar committee calls because I have a reputation to protect. But I still have the required R.G. Smith print (also signed by Dick Best, oddly enough) on the wall behind me just in case.

But to paraphrase innumerable fashion icons, don’t dress for the claim construction you have. Dress for the claim construction you want.

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This blog does not constitute legal advice. If you’d like to discuss a related legal matter, please contact Michael C. Smith via email or call 903-938-8900.