Back in the Before Time, one of my clients decided that the personal presence of expert witnesses in the courtroom was rarely necessary and hence rarely worth the expense. He used to fly around the country taking video depositions of experts for trial testimony purposes, typically scheduling two, three, or even four such depositions in the course of one trip. He was perfectly comfortable presenting expert testimony to juries on a screen. Perhaps, unbeknownst to my client, his method was a harbinger of things to come. Because from March 2020 to the present, as far as I know, no expert has taken the witness stand in a courtroom in a civil case. Instead, juries have viewed expert testimony on a screen – and not in a pre-recorded video, either. The direct and cross-examination of experts (and of fact witnesses as well) are conducted live, in real time (though in virtual space), via our new constant companion, Zoom, or perhaps through some other streaming technology. And when the pandemic is over and the courts reopen, things are not going back to the way they were in the Before Time.
The Atlantic recently published a terrific article about this: Zoom Court Is Changing How Justice Is Served (For better, for worse, and possibly forever), https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/. (The Atlantic has a paywall but allows free access to three articles per month, so you shouldn’t have any trouble getting this.) The following excerpts amount to a summary of the main points, but I heartily commend the whole article to your attention. Every trial lawyer, expert witness, judge and court administrator is going to be thinking hard about this subject for many months to come, and this article provides a good way to start thinking about it.
In the past year, U.S. courts have conducted millions of hearings, depositions, arraignments, settlement conferences, and even trials—nearly entirely in civil cases or for minor criminal offenses—over Zoom and other meeting platforms. As of late February [2021], Texas, the state that’s moved online most aggressively, had held 1.1 million remote proceedings.
“Virtual justice” (the preferred, if unsettling, term) is an emergency response to a dire situation. But it is also a vision some judicial innovators had long tried to realize. One leading booster, Michigan Chief Justice Bridget Mary McCormack, told me that going online can make courts not only safer but “more transparent, more accessible, and more convenient.” Witnesses, jurors, and litigants no longer need to miss hours of work and fight traffic….
In July [2020] the Conference of Chief Justices and the Conference of State Court Administrators jointly endorsed a set of “Guiding Principles for Post-pandemic Court Technology” with a blunt message: The legal system should “move as many court processes as possible online,” and keep them there after the risk of infection passes. The pandemic, they wrote, “is not the disruption courts wanted, but it is the disruption that courts needed.”…
There are good reasons to be wary of moving fast. An estimated 42 million Americans live beyond the reach of broadband service, and older people may be unable or unwilling to master videoconferencing technology. Douglas Hiatt, a Seattle defense attorney, refuses to try cases remotely (“They can hold me in contempt if they want”). “A lot of my clients are poor,” he told me. “They don’t have access to the internet … And plenty of folks are illiterate or non-English speakers and cannot navigate this stuff.”
Courthouses have addressed the digital divide by setting up Zoom kiosks and, in Texas, lending tablets to jurors. Defendants can log in at libraries, if they’re open, or call in by phone. But imagine trying to plead your case before a judge while your phone cuts in and out, your kids wail in the background, or library patrons hiss shhhh.
Imagine, too, your trial being live-streamed on YouTube. Virtual courts fulfill the constitutional requirement that proceedings be public either by screening them in nearly empty courtrooms or (routinely in Michigan, sometimes in Texas) live-streaming them online….Without proper controls, streaming raises the risk that “very private, embarrassing moments can be preserved forever, for people’s kids to see,” Chief Justice McCormack told me. “Anybody can record it and use it against you later.”
The live-streams have proved an unlikely hit; last year, Michigan’s courts attracted nearly 60,000 YouTube subscribers. And that was before a Texas attorney made virtual court an internet sensation when he neglected to turn off the kitten filter on the computer he was using and had to reassure the judge, “I’m here live. I’m not a cat.”
Keeping online jurors present and attentive is a challenge schoolteachers might recognize. Jurors have been caught exercising, napping, talking to people off-screen, and leaving to get snacks….
A more serious concern is that jurors, and witnesses, may get coached or coerced by offscreen eavesdroppers. Judge Rick, who is now on an appeals court, worries especially about domestic-violence victims: “I don’t know where they’re phoning in from, whether someone is exerting influence over them.”
But most of virtual courts’ shortcomings are intrinsic to live courts, too. “You have to remember, the comparison is not to perfection,” Jennifer D. Bailey, the administrative circuit civil judge in Miami-Dade County, Florida, told me. “Every day, we don’t have perfection. The question is, can we have a fair process?”
A cornerstone of a fair process is the accused’s right “to be confronted with the witnesses against him”…. [J]urors and judges gauge suspects’ and witnesses’ credibility through their demeanor and body language. Lawyers screen prospective jurors the same way; like poker players, they tend to value unspoken signals and tells. “I can’t pick a jury online,” Hiatt, the defense attorney, said. “I’ve got to be in the room with those people.” …
The importance of physical presence is a rare point on which defenders and prosecutors agree. “I do not see how people can fully assess credibility if we are not all in the same room,” Nancy Parr, the president of the National District Attorneys Association, told me. Alex Bunin, the chief public defender in Harris County, Texas, notes that virtual justice interposes emotional as well as perceptual distance – to dire effect. “Once you distance people, the ability to have empathy diminishes greatly,” he told me. “If you watch a trial on-screen, you don’t respond as you would in person.”…
Despite all these reasons to be nervous about virtual justice, its rise may be inevitable. “There is absolutely no doubt that we’re not going back to what we used to do,” McCormack said.
Concerns about access, and the quality of that access, are real. But the digital divide has proved narrower than feared, largely thanks to the prevalence of smartphones. Data suggest that going virtual has enabled many more people to participate in the justice system. Before, many defendants failed to show up in court – about 20 percent in criminal cases in New Jersey’s superior courts, according to the National Center for State Courts, and about 11 percent in all cases in Michigan. The consequences could be severe: fines, bench warrants, re-arrests….But after those states moved online, nearly 100 percent of defendants showed up. Tenants facing eviction in Arizona and parents threatened with losing their children in Texas also proved much more likely to make their court dates when they could do so online….
Finally, virtual court raises this question: Do we really need judges and lawyers to settle all our disagreements? Michigan has begun offering civil litigants an “online dispute resolution platform.” The website walks people through their options and, if they reach an agreement, produces the necessary documents. Online alternatives help “decenter courts,” Ferguson argues. Traditional courts “are all based on judges’ time. Everybody else revolves around them. Zoom changes that.”
It can also keep charismatic or bullying lawyers from steamrolling everyone else. Judge Bailey sees virtual justice as “an equalizer.” Lawyers attend seminars on how to “dominate a courtroom,” she explained. “It’s a lot harder to dominate on Zoom. Everyone gets their say.” Dial down the theatrics, Bailey argues, and “maybe we could focus more on the law and the facts.”
As these trade-offs become clearer, some initial consensus is emerging as to what virtual courts should and shouldn’t do post-pandemic. Just about everyone, even a skeptic like Douglas Hiatt, agrees that they should keep handling the routine business – from scheduling and settlement conferences to contested traffic tickets and uncontested divorces – that fills most court time. .At the other end of the spectrum, almost everyone agrees that the confrontation clause still means that the state cannot compel the accused to submit to a remote trial….Some courts now stage “hybrid trials,” picking juries remotely and conducting masked, distanced trials in the courtroom. Others do initial screening online and voir dire in person.
These experiments will likely continue even after vaccines make courtrooms safe again; in justice, as in so many other realms of life, what goes online will probably stay online. “Everyone wants to get back to normal,” Bailey said. But “we need to remember what was good about normal and what wasn’t.”
