Zoom has made the news more than a few times since the onset of COVID-19. The platform is beneficial because it is free, easy to use (with restrictions), and functional. However, there have been instances in which it got away from the host and was inappropriately used.
New Jersey recently halted the use of Zoom due to hackers showing "inappropriate content" amid a school class. Patch.com reports that a "virtual town hall" was "interrupted by disturbing child pornography images." Essence.com reports that a South Carolina “virtual cookout” was hacked with the villain "Neo-Nazis" "spew(ing) hateful rhetoric" and otherwise disrupt the proceedings.
Forbes recently reported that 500,000 Zoom passwords were stolen through hacking. Hacking is a serious business that presents a multitude of risks for businesses large and small. This has recently been discussed in Cybersecurity 2020 and Cybersecurity 2020 Again. Despite the postponement of the 75th Workers' Compensation Institute (WCI) this August, there will nonetheless be a great WCI live program on cybersecurity that should be considered by anyone using data (everyone).
Some state workers' compensation agencies have elected not to use Zoom. One national conference by Zoom recently illustrated this as some participants were unable to connect from their offices and had to resort to telephonic appearance or attendance from private (home) computers.
It seems that people have incredible imaginations for engaging in videoconferencing (a “virtual cookout”; I have also seen virtual happy hours and more). As imaginative are those who seemingly long to ruin everyone else's day with their villainy and stupidity. Suffice it to say that a simple Google search will reveal multiple instances of challenges, deception, and obnoxiousness with videoconferences.
And, those are just the people who set out to intentionally behave inappropriately. There is more though.
The Miami Herald reported in mid-April about a judge's complaints regarding professionalism in the Bar. Circuit Judge Dennis Bailey was sufficiently disturbed to issue warnings. He noted that attorneys were attending Zoom hearings in casual clothing (including without a shirt). Another complaint was with an attorney appearing in such a hearing "still in bed, still under the covers." One of the judge's comments regarding the effectiveness of a "beach cover-up" suggested that yet another may have appeared "poolside in a bathing suit."
The Judge published these thoughts in a broad admonishment. Essentially, "let’s treat court hearings as court hearings, whether Zooming or not.” The judge reminded that the manner of dress is a reflection of respect for the proceedings. The Herald story delves into the "environmental psychology" with an expert who notes that "If you are dressed like a slob" then "you're not doing anything professional or mentally challenging. I have held Zoom proceedings that involved the casually dressed.
I have written about professional appearance in For Dignity and Respect. This drew a rare rebuttal, which was republished by permission in Responses to For Dignity and Respect. The bottom line is that dress can be an expression. It can reflect respect or not. In a visual paradigm like video conferencing, it is best to at least appear neat, clean, and respectful. It is my belief that video conferencing will continue in adjudications well beyond the end of COVID-19. Therefore, the Judge's tips are commended to the reader.
This applies more broadly than just lawyers and litigation.
Another instance came from U.S, News also in mid-April. This instance involved a federal hearing that ended in frustration. The driver was poor decision making by the attendees. The issue involved gun rights and permits to carry weapons. Due to COVID-19, the judge elected not to hold an in-person hearing, opting instead for a teleconference. Instructions were provided, which included spectators muting their phones, not putting one's phone on hold, and more.
Despite all of this, the hearing was periodically interrupted by music (when some attendee placed a line on hold), commentary (“I'm listening to an argument on the gun carry case”), and conversations occurring in some of those remote locations. The interruptions drew the judge's attention and admonition. After failing to quell the noise, the judge eventually ended that hearing after apologizing to the assemblage. I once presented a lunch seminar that was similarly punctuated, including someone with a very loud sandwich wrapper.
Every judge has attempted telephone hearings at least once. Likely, each has also had a telephonic hearing in which one of the participants was simultaneously operating a motor vehicle. The sounds of traffic, children, and barking dogs have been reported to me as challenges for OJCC state mediators in recent weeks. Telephone systems are periodically themselves a challenge. Hardware may have limitations, cell service may be spotty, and more.
I hear complaints that this or that mediator or judge "does not like telephonic appearances." I always wonder if someone's resistance to the alternative could be traced to some bad experience, difficulty hearing, cell phone call dropping, or other particular situations. When you appear telephonically, are you exemplifying best practices to enhance and facilitate a successful experience for all? Or, might your methods and distractions be diminishing and discourage the convenient process in the future?
The point of all of this is that the world of remote appearances is fraught with challenges both intended and not. Those challenges are likely part of the new normal as adjudicators and mediators strive to deliver due process and resolution to litigants in the age of COVID-19. As we all struggle to adjust and adapt, perhaps the foregoing can serve to remind us that appearances, courtesies, and professionalism matter?
When you are appearing remotely, dress appropriately and sit upright at some kind of table (no "still in bed"). When you are not speaking, nor prone to (you might be still prone to to make an objection for example), mute your microphone. This will deny the others involved of the surrounding sounds your microphone might otherwise interject. If you are on video, perhaps utilize visual cues when practical (raising your hand actually or if there is such a "feature" in the software; commenting in a "chat section" to alert that you wish to speak, etc.).
Ask questions about the procedure. Do not hesitate to admit a lack of comfort with such platforms. Express yourself openly and frankly in seeking guidance on how best to participate. Remain patient and know that everyone involved has likely experienced nervousness or discomfort with unfamiliar processes or platforms. It is easy and free (Zoom) to practice in advance. Get a family member or staff to conference with you and get experience on the platform. Similarly, practice with your client or witnesses in advance.
When hosting a meeting, strive to control the attendance. Passwords are allowed by most video conferencing systems, use them. When hosting a meeting or hearing, keep an eye on the various other participants (have others joined, if so ask why - strive to avoid the potential for the "Zoom bomb" of profanity, vulgarity, or pornography that some intruder may intend). Learn how to mute participants, block their ability to be seen, and remember how to quickly terminate a meeting if necessary. Tell the others why you might do that, and instruct them at the outset how you will re-instigate contact should that become necessary.
If we keep in mind that these solutions are not perfect, that will help. If we remind ourselves and others that we are not perfect, that will help. If we all maintain our patience and professionalism in our treatment of others, that will help. The new normal is here. We will live with the implications that it brings. How will you be perceived through that process? How successful will you be in representing your client, serving your customer, or delivering your service? The fact is, you decide.
