(L-R): Edward J. O'Sheehan, Josh A. Rubin and Annie Gamez. Courtesy photos

One attorney wondered if everyone was in a TV skit when court convened for a Zoom video trial in an international child abduction case under the Hague Convention.

"For about the first half hour, I felt like I was living through the 'Saturday Night Live' episode" poking fun at Zoom newbies, said Ed O'Sheehan, a Shutts & Bowen partner in Fort Lauderdale. He represents the Guatemalan father accusing his ex-girlfriend of violating the treaty by taking their son without permission to the United States.

The echo-chamber effect was brought under control, everyone could see and hear, and the kinks were worked out a short time into the two-day hearing called by U.S. District Chief Judge K. Michael Moore in Miami.

The Zoom option kicked in after Moore ordered a halt to nonessential proceedings in South Florida federal courts until July in response to the coronavirus. The judge did not respond to a request for comment by deadline.

The standard in Hague Convention cases is to get an expedited hearing within six weeks. The parties represented by pro bono attorneys at Shutts & Bowen and Holland & Knight worked under tight time constraints to get a bench trial with leading-edge technology that was new to most.

"Everyone is trying to work through a tough situation," said Josh Rubin, another Shutts & Bowen attorney for the father. "It was important to get some sort of relief or have the ability to address the case."

To add to the standard technical issues, the hearing required Spanish-language interpreters. The father claimed the mother and son moved from Guatemala to St. Lucie County using false documents in March 2019. The U.S. case was filed Jan. 30, and the mother was served Feb. 21.

The trial was originally set for April 6, but courts were shuttering by that time. Two calendar calls were conducted online, but a plan to use Cisco Jabber as the remote vehicle fell through for technical reasons. Zoom was tested and retested to make sure everyone could connect.

"I think overall everything went pretty smoothly," Rubin said. "The trial was devoid of any major hiccups."

Zoom is made for geographic spread and certainly got it in this case. Moore and his court and technical staff were in his Miami courtroom, the father's attorneys were in Fort Lauderdale, the mother and her attorneys were in Miami, the father and most of the other witnesses were in Guatemala, a child psychologist was at work or home in Miami.

But even that's a little simplistic.

"For each person that was participating in the proceedings, we had different computers for each of them to log on," said Holland & Knight litigation partner Annie Gamez, who represents the mother.

"We did start a little late on the first day of trial because our witness in Guatemala was having some difficulty getting on initially," she said. "Once we got on, it flowed rather smoothly."

Advance Team

Preparation, especially marking and distributing 30-50 potential exhibits several days in advance, was key to the hearing's success. Printed copies went to the judge and attorneys on both sides.

"From an efficiency standpoint, that certainly helped to move things along," Rubin said.

Everyone needed to know if headsets could be used for the audio feed and if witnesses were allowed to use their smartphones to read PDFs of exhibits. They could, and as a result Zoom's document screen-share function wasn't used.

Sequestering

The trial started April 13 and ended April 14. The mother's attorneys invoked the rule barring other witnesses from hearing the live testimony. Several people were in a Guatemala apartment, so witnesses had to be alone in one room. The next witness stayed in a virtual Zoom room waiting to be activated by the judge.

But witness sequestering was a leap of faith.

"When all of you are together, if you are sequestering witnesses, you know the witnesses definitely are not in the courtroom ," Gamez said. "People from a different country might not necessarily understand these rules."

Technology

Unlike most hearings, the information technology staff was continuously present to watch for an extended screen freeze or other glitches.

"Whenever we did encounter problems, the court's IT staff would address them immediately. We also had our own it staff at our office," Gamez said. "In court, you have a better grasp of things, but when you're in this virtual reality … you weren't necessarily sure when someone had finished." 

O'Sheehan offered "one caveat, we could not hear the judge most of the time."

The judge's microphone was live at all times, Otherwise, only one designated speaker was supposed to be unmuted. That eliminated people talking over each other, which isn't supposed to happen anyway.

First Time

"After you got used to it, I would say it was not as difficult as I anticipated," Gamez said. "What was key here I think really was planning, preparation, testing things ahead of time, making sure you were familiar with Zoom, going over it with witnesses."

While trial preparation is part of every case, the remote aspect added to the to-do list.

"I had a running list of things to make sure we went through to know how things would be handled in advance," Gamez said.

Credibility

A key issue in any case is weighing witness credibility, and conclusions are drawn partly from facial expressions and other body language. When a witness is visible only from the neck up, some of the observations are lost.

"Those aren't there, but we can see changes in the tone of voice, facial expression," Rubin said. "You could hear everything just as if you were in person."

When someone on screen is looking down, you can't tell whether they are reading or sleepy. The judge was visible, but not the court reporter, court clerk or law clerk.

"There is some drawback. You're not there in front of them," Gamez said. "It definitely is a little more difficult, but you can definitely assess someone's demeanor."

Camera View

Some witnesses used their smartphones to testify, and Rubin was impressed with the video clarity.

Gamez was aware that the image of someone taking a sip from a cup of coffee was reduced pretty much to a coffee cup. "It made you very self conscious, I can tell you that," she said.

What's Next?

There was no Zoom-bombing with the court staff serving as the access gatekeeper. The proceedings were recorded, the court reporter was given seven days to produce a transcript, and the attorneys have time after that to deliver draft findings of fact and conclusions of law. A ruling is expected without another hearing.

"We're all trying to conduct business as usual as much as possible using these remote platforms," Gamez said, noting she was scheduled for a case management conference in state court on Zoom.

The Future

Attorneys are weighing the idea of using remote hearings in a future not dictated by COVID-19 social distancing. A 15-minute fact witness could skip a trip from New York, and foreign witnesses could be spared international travel, especially with airlines shaving their schedules for lack of fliers.

"I think that we may be seeing a little bit more of this," Gamez said. Not jury trials, "but for other more streamlined proceedings I think that whenever it's doable, you might be seeing a lot more of that."

O'Sheehan said, "It would seem to make sense for not your primary witnesses. I would hope it's available in the future." He suggested summary judgment hearings with online-accessible exhibits would fit the remote format.

International child abduction cases also might be ripe for remote hearings. O'Sheehan said his firm has taken another Hague Convention assignment from the State Department and is preparing to file the case.

"Oftentimes in these cases, it's difficult for people to come to the United States to provide that testimony. We just had to make sure that they had a good Wi-Fi connection," Gamez said.