Beware of the Shared Screen – Your Opposition is Watching

Coming out of the pandemic, it appears that videoconferencing is here to stay. As time marches on, the use of videoconferencing will likely increase rather than decrease. Right now, it is becoming one of the main modes of getting much of the present litigation work completed—hearings, depositions, client meetings, arbitrations, and mediations are increasingly occurring virtually.

On the one hand, videoconferencing lacks the human touch of the in-person—hallway chats and face to face adversarial work are growing more and more infrequent. This poses its own set of challenges for individuals and attorneys. For instance, spotty internet connections, lack of technical know-how, and older software can create delays, annoyances, frustrations, and miscommunications. Likewise, the missing human touch decreases collegiality and relationship building within the bar, which can make thorny cases more difficult to resolve. Opposing counsel is now just another virtual box, rather than a person you know, in real life.

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On the other hand, videoconferencing, when done well, generally results in increased efficiency, decreased overall travel, and more ease in coordinating disparate schedules. It can make it easier to get a lot done faster and can decrease number of hurdles that in-person meetings bring (as long as everyone has an appropriate device and access to a decent internet connection).

With that said, attorneys, broadly speaking, are not very tech-savvy. The law, by its nature, tends to be more conservative in practice. Generally, there are not seismic shifts in the way things are done. The pandemic forced the legal profession to adapt to changed circumstances. As a result, familiarity with videoconferencing is now almost a pre-requisite to properly navigating a civil suit. It should be noted that the legal profession has come a long way, not long ago many attorneys did not regularly use a keyboard and the default was dictation. Moreover, tampering with the way justice is rendered is something that should be done with careful thought and deliberation.

With videoconferencing becoming a mainstay, it behooves essentially all litigators to learn how to appropriately videoconference. This brings us to the share screen function. Time and again, attorneys flippantly utilize the share screen function without first recognizing what it is that they are sharing to everyone else. If you are not cognizant of the precise screen you are sharing and the content that is on that screen, you run the risk of revealing boatloads of information and potentially privileged material.

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If an opposing attorney shares their screen and it contains case relevant information, that is not being utilized either as an exhibit or for discussion, the opposing attorney could be giving away what he views as critical to the case. I have seen attorneys wholesale share their Outlook emails without realizing it, root through their own client file looking for pertinent documents, and similar actions on a fairly regular basis. Often, someone, the damage now having been done, gently nudges the screen-sharer to stop.

Even something as simple as letting your opposition see the way you internally label folders or subfolders for any given lawsuit can prove disastrous. Think about it. How folders are labeled (or, worse yet, the content within those folders) can often provide significant insight into mental impressions, investigatory undertakings, expert retention/consultation, research, or whatever else there may be lurking on your screen. Depending on the depth of content being revealed, significant clues as to strategy, weak points, pertinent legal theories, possible defenses, and the like can be gleaned.

This is akin to strategically letting your client get deposed first—if you listen closely, you can generally pinpoint what the opposition thinks are their strengths, what their theories will likely be, and flag lines of questioning that you would not have even thought to ask the opposition to bolster your (previously unknown) counterargument. Before you share your screen, know what it is that you are sharing. Once you are done sharing whatever it was, immediately stop sharing your screen.

While videoconferencing is a phenomenal tool, that is what it is: a tool. You have to use the tools at your disposal properly, advantageously, and with caution. Don’t let those tools be weaponized against you or you might find yourself giving away the farm and, in turn, doing your client a real disservice.

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