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Zoom Courts Will Stick Around as Virus Forces Seismic Change

July 30, 2020, 8:50 AM

Virtual court proceedings will probably outlive the Covid-19 pandemic, as even skeptical judges and lawyers say that they’ve made depositions, oral arguments, and jury selection much more efficient.

Courts forced to accelerate years of innovation into weeks may never go back to how they did business before the pandemic, according to interviews with more than 30 state and federal judges, lawyers and court staff in 16 U.S. states and the District of Columbia. The embrace of technology is a revolution for many courts that have historically resisted it.

“We’re going to be doing court business remotely forever,” said Nathan Hecht, chief justice of the Texas Supreme Court and co-chair of the National Center for State Court’s pandemic rapid response team. “This has changed the world.”

The constitutional right to confront witnesses will probably limit the use of video proceedings in criminal cases. In-person action is particularly important in jury trials, where determining witness credibility is so central. But that still leaves plenty of civil proceedings, particularly scheduling and status conferences and settlements.

Kimberly Mueller, chief judge of the U.S. District Court for the Eastern District of California, which includes Sacramento, said she used to be inflexible about holding proceedings by phone. “I’ve become persuaded that the videoconferencing by Zoom for the purposes of civil scheduling conferences, civil law in motion, and quite a bit of criminal pretrial work is a good enough equivalent to seeing someone in person,” Mueller said.

Changes like that are taking place across the country from the federal to state bench. All 13 federal appeals courts now do live streaming, up from four before the pandemic, according to watchdog Fix The Court. Even the Supreme Court, while not adopting video, made the historic move to allow a live audio broadcast of its May oral arguments—a luxury afforded to only the few before the outbreak who sometimes camped out overnight to see the justices in action.

“In three months, we have changed more than in the past three decades, and now that we know innovation is possible, we have a unique opportunity to create long-term and much-needed change for our justice system,” Bridget Mary McCormack, Michigan Supreme Court chief justice, said at a June U.S. House Judiciary subcommittee hearing.

Efficiency

For lawyers, and their clients, time is money.

Remote proceedings all but eliminate the time spent commuting, finding parking, and waiting—all for a 15 minute hearing. And it’s not just big city lawyers that save time and billing hours.

Penni Chisholm, a family law and personal injury attorney based in Columbia Falls, Mont., population 5,500, typically spent two hours a week commuting to and from the courtroom before the pandemic.

“I suppose that doesn’t sound like much,” Chisholm said, “but when I’m billing my clients for it, it does make a difference.”

The benefits of video arguments are equally apparent in Houston. Lee Rosenthal, chief judge in the Southern District of Texas, said using video for arguments on motions, scheduling issues, and initial pretrial hearings in civil cases has been “surprisingly effective.”

“We have learned that we can achieve efficiencies without sacrificing what we value by using technology more than we did before,” Rosenthal said.

Tynan Buthod, an attorney for Baker Botts LLP in Houston who represented a client in a virtual bench trial before Rosenthal, said allowing virtual witnesses is “beneficial for everyone’s schedules, efficiency and cost. You don’t have to have an expert sit for weeks in a courtroom and wait to be called.”

Accessibility

Litigants in virtual hearings don’t have to take time off from work or arrange for child care to come to court. That’s led to fewer no-shows at the virtual hearings held by Carolyn Bell, a Florida state juvenile court judge. Transportation to court, another hurdle for many litigants she sees, is no longer an issue.

“In the state courts, particularly people that don’t have lawyers, when they’re doing the Zoom hearing they actually feel more equal and able to communicate,” Jeremy Fogel, a former federal judge and an executive director of the Berkeley Judicial Institute.

Fogel said the format of video conferencing platforms, like Zoom, can be less intimidating than the courtroom for people representing themselves. “The little boxes on Zoom are the same size for everybody,” he said.

Virtual courts can also prove more accessible for children and domestic violence victims, who may not be comfortable answering questions from a judge in a physical courtroom or sitting in the same room as their abuser.

Andrew Edison, a magistrate judge in the Southern District of Texas, hadn’t heard of Zoom at the beginning of March. He’s now holding all his hearings on the platform.

Among benefits of the video link is seeing lawyers’ names appear on the screen when they’re speaking, Edison said.

“I used to do a lot of telephonic hearings simply because in discovery issues it wasn’t necessary to bring parties from all over the country into my courtroom for a 15 minute hearing,” Edison said. “I have now canceled all telephonic hearings and I’m doing all hearings by Zoom.”

Not for Everyone

The pandemic relief legislation, the CARES Act, loosened restrictions on using video in criminal cases in federal courts. That portion of the law will eventually expire when the pandemic passes or there is no longer a material threat to courts.

But judges and lawyers say that’s for the best. They’re generally averse to using video in criminal proceedings where defendants have a right to confront witnesses against them.

“Are you willing to trade protected constitutional rights for speed and convenience?” said Ben Rubinowitz, a personal injury lawyer and chair of the National Institute for Trial Advocacy’s board of trustees.

A courtroom should be a “solemn, serious place,” said Randy Gioia, deputy chief counsel for the Public Defender Division of the Committee for Public Counsel Services in Massachusetts. Witnesses are more likely to tell the truth if they have to enter a courtroom and look the judge, jury, and an accused person in the eye, Gioia said.

“We can’t wait to be in a position to get rid of video in criminal cases. It really doesn’t work,” said Colleen McMahon, chief judge of the Southern District of New York. “This is about, at the most fundamental moment of your life, being able to see and participate and to know what’s happening to you and who’s doing it to you.”

Other Limitations

The virtual proceedings also bring about technology and access issues.

If they’re to become permanent, “the real key will be cost,” said William Raftery, knowledge and information services analyst at the National Center for State Courts. Courts would have to invest in “hardware, software, and training,” and staff to handle administrative work, Raftery said.

Lawyers say video proceedings have other limitations. It’s easier to gauge a judge’s reaction or a witness’s non-verbal cues in-person. Remote interaction undercuts the intimacy of oral advocacy.

“Ideally you want it to just be a conversation between you and the judge during oral arguments about your side of things and why your client is right, and it’s just easier to have a conversation like that in person,” said Nicole Saharsky, an appellate and Supreme Court litigator at Mayer Brown.

More reliance on technology would invariably bring on more technical problems, which may pose barriers for judges who aren’t tech savvy, said Karin Crump, an Austin state District Court judge. Nor are virtual courts well suited for people who lack high speed internet access.

Virtual Court Future

The decisions on continuing virtual proceedings after the pandemic largely rest with the courts and judges.

Although there are limitations for criminal cases, federal courts have autonomy to offer virtual options in many civil proceedings.

Similarly, states will decide the extent to which they keep virtual hearings. “For the most part, it won’t require statute changes but court rule changes,” Raftery said.

Thomas I. Vanaskie, a former U.S. appeals and district court judge, was chair of the Judicial Conference’s IT committee when the federal court system adopted the use of cameras in courts for things like remote witness testimony in the early 2000s. That work ultimately laid the foundation for the technology judges are using in courts today.

There’s still a long way to go for courts in terms of getting comfortable with changing and updating their procedures, Vanaskie said.

“The courts have shown flexibility to adopt technology in light of this pandemic and that’s encouraging,” he said.

To contact the reporters on this story: Allie Reed in Washington at areed@bloombergindustry.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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