Virtual Court Hearings Earn Permanent Spot After Pandemic’s End

The virtual court proceedings that reshaped the judiciary during Covid-19 will outlive the pandemic, as state courts across the country rewrite their rules to incorporate the lessons learned from the crisis.

Alaska, Arizona, Illinois, Minnesota, Maryland, Michigan, North Carolina, and Texas have all integrated remote operations into their state courts’ permanent playbooks. Some states have made civil non-evidentiary hearings largely remote, and others have extended that to procedural criminal hearings as well.

The shift has the prospect of making courts more accessible for those who might have been shut out due to cost or travel time. However, it’s also forcing courts to grapple with the necessary technological upgrades and changes to trial procedures to ensure hearings remain fair for everyone.

“I look at this moment as an incredible opportunity to concretize some innovations that happened because of the pandemic and to keep up the momentum,” said Danielle Hirsch, interim court services director of the National Center for State Courts’ court consulting division.

Federal courts have less flexibility in the way they broadcast court proceedings to the public and utilize videoconferencing with the Covid-19 public health emergency now officially over. But federal rules for criminal and civil procedure still leave some wiggle room for judges to incorporate virtual proceedings.

“Although the fundamental feature of the court system is that it’s heard in court, there were advantages to the use of technology in remote proceedings that we hadn’t really been able to understand before because we hadn’t needed to rely on them so much,” said David Barron, chief judge for the US Court of Appeals for the First Circuit.

State Courts

State courts amendingtheir rules of civil and criminal procedure or updating their guidance about remote appearances are trying to incorporate the many benefits of virtual hearings.

They save lawyers from having to commute across the state for matters that can be resolved in a 15 minute Zoom meeting. They also encourage participation from parties that otherwise might not have been able to take time off from work or find childcare to come to the courtroom.

In Illinois’ Ninth Judicial Circuit, where there’s no public transportation between the courthouse and the population center, just one domestic violence advocate used to drive people seeking protection orders to their court hearings, said Hirsch, who used to work for the state’s court system. “It was a small enough community,” so “everyone knew what that person was in court for” when people saw them with the advocate.

Zoom hearings alleviate that stigma, Hirsch said.

Arizona and Kansas launched domestic violence portals that allow someone to file an emergency order of protection remotely.

Practice rules in Michigan also went through an overhaul last August, allowing courts to use video conferencing technology at the request of any participant, so long as it doesn’t interfere with other court rules or the parties’ constitutional rights. Now the rules say videoconferencing is “preferred” for any non-evidentiary or trial proceeding, while trials are “presumed” to be held in-person.

Florida judges are instructed to “take all necessary steps to support the remote conduct” of court proceedings that don’t have to be in person in order to “maximize the availability of facility space for trial court proceedings that must be conducted in person,” the State Supreme Court said in updated guidance in January 2022.

Federal Courts

The CARES Act, a Covid relief bill, allowed federal courts to publicly broadcast many remote civil, bankruptcy, and criminal proceedings. That flexibility is sunsetting, meaning photographs and broadcasts from federal courtrooms will once again be prohibited for many aspects of criminal cases, and civil trial witness testimony typically needs to be taken in person.

The federal rules of criminal and civil procedure still give courts and judges some discretion to incorporate virtual proceedings, said New Hampshire District Judge Samantha Elliott. Judges can allow video conferencing for initial appearances and arraignments in criminal cases. And courts still have flexibility in how they can handle civil procedures outside of trial testimony.

Elliott is a member of the First Circuit’s post-pandemic operations committee, which was charged with figuring out “how we can take the lessons learned during the pandemic, and take the good, and leave the bad as we move forward,” she said.

The committee is putting together a best practices memo that covers what factors judges and parties should consider when deciding whether a hearing should happen remotely.

No Panacea

Despite the benefits of remote hearings, courts acknowledge they still present challenges that must be grappled with.

“There are communities, where, for instance, broadband is not as available to the citizenry, and that changes the math about how much you can rely on remote,” said Illinois Appellate Court Justice Eugene Doherty, who served on the state’s Covid-19 task force. “Even some of our courthouses don’t have the best internet services.”.

The state adopted new rules in April that permit parties to appear remotely if they choose to, but don’t presume any particular type of hearing to be virtual.

“The best solution is one that allows for flexibility based on user preference,” Hersch said.

Hybrid hearings can be particularly challenging for courts to pull off “really basic things like people being able to speak and hear each other in a productive way,” said Lindsay Hafford, senior court management consultant for the National Center for State Courts. Hafford is directing a project to help courts improve the way they conduct hybrid hearings.

In Texas, there’s also been “some public pushback against judges not being in the courtroom or their office when they’re conducting these proceedings,” said state Supreme Court Chief Justice Nathan Hecht. “It’ll probably change a little bit over time, but there’s kind of a feeling that the judge is not doing his or her job if they’re not on the premises.”

The bar has also resisted using virtual hearings for criminal matters.

“Some of that is justified,” Hecht said. “Nobody wants to try a complex felony case to a jury remotely” because it’s “much too dynamic,” Hecht said.

But for many lower-stakes criminal matters, like cases where someone is arrested for running a stop sign, “there’s no reason why they couldn’t be tried remotely,” Hecht said.

Judicial Discretion

In many states, such as Michigan, individual judges are now the arbiters of what proceedings may happen virtually. Illinois, Texas, and Ohio’s rules include safeguards that give judges discretion to deny a virtual appearance.

When making those determinations, judges should consider whether a hearing is evidentiary, its length and complexity, how far attorneys and parties have to travel, and whether the expense of the hearing is commensurate with its importance, Elliott said.

Judges should also make sure that “parties aren’t playing games"—pushing for in person proceedings just to burden the other side, Hecht said.

It’s important for courts to provide clear guidance about how and when virtual court proceedings can be utilized so that parties can make informed choices, Hirsch said.