We are all going through a significant period of evolution, and it means, that there’s an opportunity in that, it feels burdensome right now, because so much has been taken from us. But there’s such an incredible opportunity, to decide how you want to show up in the new world. Because it will be a new world. And my greatest hope is that we don’t reach for normal, that we reach for better.1
Institutions tend to change slowly. Courts and the legal profession are no exception. In fact, they are perhaps among the least agile. Sometimes, resistance to change protects important systemic values like due process and the attorney-client privilege. Inertia also stems from the very nature of the common law—a system based on precedent. Doing things as they have been done before (and as approved by appellate courts) is safe, while innovation risks reversal and its accompanying inefficiencies and dislocation. In addition, lawyers are trained to recognize and avoid risk, and change is riskier than relying on proven past practices.2
When change involves technology, change must overcome additional disincentives. Although state bar ethics rules have begun to include technological competence as a professional mandate,3 legal education emphasizes more traditional knowledge and skills. Nor do underfunded court systems have the resources they need to adopt new technologies, even if they would be more efficient. Dispersed power over court decision-making also makes large-scale change quite difficult.
And then along came the COVID-19 pandemic. To keep vital legal processes moving while keeping participants and the public safe, courts quickly reached for what technology could provide. “Our normally hidebound courts are moving online with surprising speed.”4 The five most common adaptations, according to the National Center for State Courts, are (1) “Restricting or ending jury trials,” (2) “Restricting entrance into courthouses,” (3) “Generally suspending in-person proceedings,” (4) “Granting extensions for court deadlines,” and (5) “Encouraging or requiring teleconferences and videoconferences in lieu of hearings.”5
The move online, when coupled with a commitment to transparency and public access to courts, created a unique opportunity. Scholars and the general public have had a chance to observe trial-level courts holding pretrial hearings and to see what those online hearings look like; to analyze the challenges and opportunities they present for judges, lawyers, parties, and witnesses; and to consider what lessons the COVID experience holds for the future.
Texas provided an excellent testing ground. On March 13, 2020, the Texas Supreme Court and Court of Criminal Appeals jointly issued an order that, among other things, provided:
Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant’s consent . . . [a]llow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, or court reporter, but not including a juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means.6
At about the same time, the Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create the required open-courts access to those proceedings on YouTube.7 Between March 24 (when the first online hearing was held) and June 1, Texas courts held about 122,000 remote hearings.8 During the period from March to August, Texas judges held “an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours.”9
This Article describes the findings of an observational study of what happened in those courts.10 A team of six law students observed online hearings between May 12 and June 30 and reported what they saw. In addition, I interviewed family court judges, trial lawyers, and staff members of Dallas Court Appointed Special Advocates (CASA) about the online experience from their perspective. This Article focuses on proceedings in the family courts because those courts were among the first power users of online Zoom hearings and because they faced many of the most challenging situations in using the online format. Observations showed that family courts face some of the same issues as trial courts across the board,11 and so the lessons from those courts are also applicable to courts generally.12 The observations provide a look at the experience of attorneys, judges, clients, and adjunct personnel in family cases—sometimes showing us what would happen even in person, and sometimes showing us the effects of the online context.
The Article begins by describing the observational project itself, and then turns to the current situation with online hearings. This provides important lessons for both participants and the judicial system. It then turns to lessons for the future. Even when courts are able to return to fully in-person hearings, should they? What processes should continue to be done online? And what processes must be conducted in person unless completely infeasible? More fundamentally, what has this taught us about what courts are really about? Courts and judges have done an admirable job adapting to the online environment, but can we also see opportunities for more fundamental innovation?
Answering these questions requires us to balance policy concerns like access, efficiency, privacy, reliability, and procedural fairness. It requires us to consider whether the virtual forum threatens equal treatment in any way. More fundamentally, it requires us to unbundle what courts do. In part, this requires us to rethink courts as providers of important services rather than as buildings. Our default when thinking about courts is to think of the courthouse. COVID challenges us to take a broader look at processes that meet disputants where and how they are most needed. Courts have always assumed that those with disputes come to them. What would be the impact on the delivery of justice if disputants had additional ways and additional places to bring their legal problems to be decided?
I. The Study
What civil procedure professor could resist the lure of a window on online proceedings in civil cases? Hearings that would normally require in-person trips to multiple courthouses and courtrooms could suddenly be accessed with the click of a mouse, with many options accessible through the same website organized by the Texas Office of Court Administration.13 After a week of random observations of civil court hearings of all types, it was clear that a broader study would be worthwhile. I hired six students—two rising third-year students and four rising second-year students—to begin their observations in May. Their training included an overview of Texas court structure, procedure rules, and general family law concepts and processes. Several students already had some litigation experience as judicial interns or law firm employees, or through other life experiences. After some informal preliminary observations and conversations about what could be observed and what they might profitably watch for, we arrived at a form to be used in all of their formal observations.
The form collects basic information about each case—name, docket number, court, judge, type of hearing, identity of participants, time elapsed, whether the proceeding was contested or uncontested, and whether any parties were self-represented. Tracking technology, the student observers described use of waiting rooms, breakout rooms, screen sharing, and other advanced Zoom features. They described attorneys’ oral arguments. When witnesses were called, the student observers noted their identities, whether they appeared to be experienced witnesses (e.g., Child Protective Services (CPS) caseworkers), the topic of their testimony, whether a translator was used, and where they were testifying from (including whether other people were present). The student observers separately described and evaluated the effectiveness of direct and cross examination. When documents were used, the student observers described how the documents were shared, whether that method was effective, and whether they were successfully introduced into evidence. Because we were curious about any problems that the online context might pose, the student observers also zeroed in on technology issues. Were there problems? Also, were people connecting to the hearing in a less-than-ideal way? Finally, the students were asked to evaluate generally how effectively the judges controlled the hearing, assisted the participants, and dealt with distractions in their own environment.
The hearings selected for observation were not formally randomized. Nevertheless, the observations were made during all times of the day, five days a week, for six weeks. (More observations were made in the morning, but mornings provided a greater number of hearings.) Each student watched online hearings for about 20 hours per week.14 They were instructed to choose courts at random but to prioritize contested over uncontested hearings, and hearings involving evidence over those including only lawyers making arguments.15 The family law hearings included agreed divorces, bench trials on the merits, temporary orders (and modification of those orders), motions to withdraw as counsel, adoption, status hearings, motions to compel, termination of parental rights, protective orders, motions for attorney fees, show-cause orders, paternity proceedings, CPS custody matters, visitation rights, discovery disputes, motions to enforce child support, name changes, and disputes about mediation agreements.
The students observed 305 hearings. Of those, 198 were family law hearings.16 About 60% of the hearings were contested (at least at the outset of the hearing). The family law cases were held in courts covering 49 different counties and two consolidated CPS districts. The urban counties (Dallas, Collin, Bexar, and Harris) were the best represented in the observations, but active courts in other counties (Hunt/Rains, Fort Bend, and Hidalgo) also had more than 10 observed hearings each.
Some statistics from the family law hearing observations follow:
- 43 (about 22%) included at least one self-represented party (both parties were self-represented in eight cases (4%)).17
- 26 (about 13%) used Zoom breakout rooms.
- 54 (about 27%) used Zoom waiting rooms.
- 34 (about 17%) included someone using the screen-sharing function.
- 60 (about 30%) involved some use of documents (many including screenshots of social media posts).
- 76 (about 38%) had a problem with technology, although many were minor and quickly resolved (e.g., problems logging in, audio quality, or speaking while muted).18
Looking at the bigger picture, the results are not surprising. In some ways, it may be most noteworthy that the majority of hearings had no insoluble technological problems. Uncontested hearings worked more easily than contested ones. Hearings where no evidence needed to be introduced worked more easily than those that involved documents, but most attorneys and judges became proficient at working with documents online (often both exchanging documents in advance and sharing screens during the hearing). Even over this six-week period, proficiency improved (lawyers and judges both got better over time, and technology problems decreased).19 And the same problems that plague Zoom meetings more generally—from participant error (“Bob, I think you’re still on mute”) or inability to use the technology correctly, to resource-related issues of adequate broadband capacity—appeared in court hearings as well.20 Some worries about the impact of the online environment on parties and witnesses proved well-founded, as self-represented parties and nonlawyer witnesses were more likely to have problems related to the strength of their connection to the internet. However, one offsetting bonus was actually an increase in court access for those who might not have been able to take time off work, get child care, find transportation to the courthouse, and lose a day’s pay if required to appear in person. Similarly, out-of-state parties and witnesses were more easily able to participate. All of this was front and center in the family courts.
II. Family Courts at the Forefront
When courts first had to shut down their in-person proceedings, and many people still hoped that the pandemic would be relatively short-lived, there was a tendency to think of the online option as for emergencies only. For some types of courts, emergencies were scarce. Not so family courts—many of the types of decisions that family courts make are inherently time-sensitive, and so it was clear from the outset that online hearings would need to commence quickly.
In Texas, where court administrators provided the needed Zoom-plus-YouTube infrastructure almost immediately after shutdown, and where judges got general online training on March 22, the family law bar responded quickly. On March 27, 2020, the Family Law Section of the State Bar of Texas livestreamed a very helpful training program. As the organizers told attendees, the session provided training on “the basics you need to know about logistics, calling witnesses, introducing evidence, rebuttal evidence, and private call-outs.”21
Family court judges (including both those who are assigned to family-specific courts and those with general jurisdiction courts that have family matters within their caseload) were also among the leaders of training for lawyers and judges across the state, and so the influence of what the family courts had learned spread to state trial courts more generally. For example, Judges Emily Miskel (Collin County), Dennise Garcia (Dallas County), and Roy Ferguson (Brewster, Culberson, Jeff Davis, Hudspeth, and Presidio Counties) participated both in state-level training and in training webinars provided by national groups.22 They also helped train others and used their significant social media presence to keep lawyers up to date on the shifting rules on hearings and trials, including advice on best practices.23
These necessary emergency hearings often raised some of the most difficult issues for online proceedings, such as multiple witnesses, witnesses with no prior experience testifying in court, the need to decide contested facts based largely on witness credibility, the involvement of self-represented parties, the inability to ensure that witnesses were testifying without help or coaching off screen, and the need for lawyers and clients to communicate confidentially during hearings. From a technological standpoint, they required the use of waiting rooms and breakout rooms and the sharing and introduction of documentary evidence. Family law practitioners and judges thus had a lot of expertise to share. It also became clear relatively quickly that emergency matters would not take up all of the available court time, and so with their increasing confidence and Zoom expertise, judges began scheduling nonemergency matters as well.
The next section provides an overview of the types of experiences the student observers reported in online hearings from mid-May to the end of June. This review of the range of possibilities will provide context for the observations in the sections that follow.
III. What Do Online Court Proceedings Look Like?
To get a sense of the implications of online hearings, it helps to consider a few vignettes describing the proceedings. Before considering individual report entries in isolation, we can try to understand the shared experiences of all involved. This section of the Article takes the components of reports from the student observers, puts the entries together, and weaves them into a story of the hearings.24
Consider first an example of the easiest type of hearing to move online: uncontested and free of significant technology demands. In an uncontested action brought by a mother to terminate a father’s parental rights,25 the mother was represented by an attorney, and a guardian ad litem had been appointed to represent the interests of the child. The father was not represented but did appear remotely from the county jail.26 The judge who heard this case uses Zoom’s waiting room function to tee up participants for later hearings, and in this case the prior hearing was running late. The judge used her Zoom skills to advantage by briefly pulling the lawyers and parties into the “courtroom” for a quick moment to explain to them that she was running behind, putting them back in the waiting room, and then re-admitting them when it was time for the hearing to begin. Once the 15-minute hearing began, the mother testified about why she sought the termination; the father testified that he understood why the mother was requesting termination of his parental rights and didn’t contest it. The lawyers went on to ask the mother a few simple questions about her daughter and her finances. The petition was granted. Despite the very difficult and serious nature of a proceeding terminating parental rights, even though uncontested, the student observer commented that the judge was “organized, composed, empathetic, and yet stern,” and that the participants responded accordingly.27
B. Contested but No Technology Problems
Now consider a contested case that is typical of those that go well.28 A mother had filed a motion to modify a custody order based on her belief that the father drank excessively while the children were with him. Both parents were represented by lawyers, and both were logged into the hearing. A nonparty witness (whose role was to authenticate Facebook posts) was kept in the waiting room until it was time for her to testify.
There were three witnesses. First, the nonparty witness, who was a Facebook friend with the father, authenticated Facebook photos showing the father’s drinking. She was testifying from her home, which is not in Texas. Second, the mother testified to her concerns about the father’s drinking. Third, the father testified and admitted to drinking “maybe a 12-pack per day” when he did not have the children. Screen sharing was used to display both the Facebook photos and the current custody order.
The judge intervened twice on technology issues. First, when the mother began her testimony, there was loud feedback when she spoke, so the judge walked her through logging out, turning off the microphone on her laptop, and dialing in on her phone. This took only about two minutes. Second, the father originally had a “happy family photo” as his virtual background for Zoom. The judge had him remove it because the proceeding was a custody case and the photo had not been introduced as evidence.
C. Contested with Technology Problems
Not all hearings go so smoothly online, and challenges for self-represented parties in particular may be exacerbated in the online setting.29 A hearing on a motion for temporary orders and conservatorship involved two self-represented parties: the biological mother, and a family friend who had temporary custody while the biological mother dealt with issues of drug addiction (originally with the consent of all parties). One issue at the hearing stemmed from the parties’ self-representation: The judge tried to help them understand that “she’s lying” is not a proper legal objection. (The student observer estimated that this type of objection continued throughout the hearing.)
Due to the lack of other ways to connect (and lack of counsel to advise otherwise), some parties and witnesses used cell phones, some with video and some audio only, in settings that were very different from the courtroom. The biological mother was sitting on an unmade bed wearing a tank top and smoking while questioning the CPS caseworker, and sometimes walked around while talking. The video from her phone was rotated 90 degrees, making it hard to see. The biological father had a poor connection and his audio was garbled at times so that the judge had to ask him to repeat himself. He was a witness, not a party, and called in to the hearing; he offered to relinquish his parental rights, supported placement with the family friend, and emphasized that he did not want to be named the conservator.
While this hearing was far from ideal, the student observer credited the judge with making the most of the situation. In her view, “I think the judge controlled the hearing while allowing some latitude for the parties. The judge was stern when needing them to get back on track but showed compassion to each side when appropriate. . . . I’m not sure that it would have gone any differently had it been held in person.”
The next sections will break down the student observers’ reports by focusing on different participants in the process: judges, lawyers, and parties and witnesses. The Article will then consider the ability of judges hearing cases online to protect participants’ privacy interests. The analysis of hearing observations then addresses concerns that remote hearings decrease the reliability of fact-finding based on contested evidence, especially witness testimony, because of the difference between in-person and video evidence.
IV. The Role of Judges
The most important factors in determining the efficacy of the online hearings were the judge’s skill in using the available technology and ability to somehow provide a sense of justice and empathy despite the lack of physical presence.
While not universal, the student observers often encountered both. Of the 198 hearings, in all but nine the judges were described in complimentary terms such as “great job,” “did really well,” “very effective,” “did an amazing job,” and the like. That being said, the judges were often being credited because they found ways around technological challenges. This student observer note provides a good picture of the way tech savvy and judicial demeanor can combine:
[The judge] did a great job of addressing the audio issue [one of the attorneys was having trouble hearing the judge] first thing. [This judge’s] knowledge of Zoom, patience and overall confidence/calmness put everyone at ease that they wouldn’t move forward until she had resolved the problems. [The judge] also did a fantastic job of handling an emotional witness and multiple objections during testimony. Objections are tough as they are, by nature, interruptive [and] especially hard to control on Zoom but she handled it very well.30
The hearings that were described in less-glowing terms were sometimes hindered by problems in technology such as poor audio, self-represented parties who needed help, or difficulty in using Zoom’s language interpretation function.31 Two of the lower-rated hearings were characterized as ineffective due to the judge’s failure to engage. Of those, the most notable was described like this: “The judge was very hands-off. He didn’t even appear to be trying to learn to run the meeting. Rather, he was letting his assistant and court reporter try to figure it out while he leaned back in his chair.”32 It must be remembered, though, that these situations were the exception rather than the rule.
A. Mastering Possibilities Created by Technology
What, then, were the judicial skills that made online hearings run efficiently and smoothly? Some were the same traits and practices that help with in-person hearings. The judges were themselves prepared for the hearing, having read the motions and documents ahead of time. Those judges also helped ensure that the parties were prepared by communicating expectations in advance—both the kind of expectations that would be true of an in-person hearing and instructions about what to expect in an online forum.33 For example, “[b]efore the hearing, the judge gave a lot of instruction on how the Zoom hearing would go. He also gave general instructions such as not talking over each other, procedure for witnesses, and the plan for the day.”34 During hearings, judges could enforce those ground rules by using tools they had as “meeting host” to mute and unmute speakers35 (or even mute participant video if necessary), putting people into breakout rooms, or making rulings on evidence objections as judges do in in-person hearings.36
A new judicial skill that helped tremendously with online hearings might be called “judge as tech support professional.” Especially as time went by, judges had far more experience in Zoom courtrooms than anyone else—including the lawyers, but especially the parties and witnesses. Here’s an example: “[The mother’s] attorney admitted a video of an altercation between [the father] and [the mother’s] brother that was filmed with her sister-in-law’s iPhone. . . . [The judge] walked [the mother’s] attorney through the process of [screen sharing] and playing the video.”37 Another: “At one point during [a witness’s] testimony [the judge] called a short break so that [the witness] could plug in her computer, and try to restart her router to see if the connection could get better.”38
Adept judges also tended to think through challenges that the online environment might present. Thus, when a hearing would involve documents, especially numerous or longer documents, successful judges would instruct the parties to exchange digital copies of those documents in advance, whether by email or in Dropbox folders.39 Similarly, because Zoom’s audio lag can make it hard to lodge an evidence objection before the witness answers the disputed question, some judges used visual cues instead. They instructed lawyers to hold up placards saying “Objection,” or to use the Raise Hand function of Zoom, and told participants to stop talking when that occurred.40
In a physical courtroom, judges can control quite a bit by managing the flow of people in and out of the courtroom and adjoining rooms. The most successful online judges found ways to use Zoom tools to perform parallel functions. In this regard, the waiting room feature is invaluable. It can be used within a single hearing as a holding place for witnesses who have not yet testified. That keeps the witnesses available, and the judge can admit them to the hearing when they are needed. Waiting rooms can also be used for a judge’s whole docket, in that judges can schedule multiple hearings for the same time range and call cases as they are reached.41 Lawyers who were interviewed reported that being able to do other work while in a court’s waiting room was far superior to spending long periods of time sitting on courtroom benches waiting for their case to be called.42
The other Zoom tool that helps with courtroom management is the breakout room. Just as in a live hearing, where smaller subsets of participants might need a place to meet privately together, in online hearings, parties might need to confer where others cannot hear them. Enter the virtual breakout room.43 The communications between those in the breakout room are not visible to other participants in the hearing or to those watching on YouTube. Judges, then, could use breakout rooms for an attorney to confer with her client,44 for multiple attorneys on the same side to discuss an issue, for opposing counsel to work out a disagreement about the hearing itself, or for the judge to confer with the attorneys off-screen. Breakout rooms can also be used for settlement discussions or mediations. Judges, then, learned to create an appropriate number of breakout rooms and to move people in and out of breakout rooms as needed.45 Finally, breakout rooms can be used to allow judges to handle multiple simultaneous hearings—perhaps more easily than in the courthouse. One example: “[T]he [j]udge sent attorneys to breakout rooms to work out the amendment to the divorce decree. While these parties were in breakout rooms, the judge started another trial,” and multiple proceedings in multiple breakout rooms kept the docket on track.46
B. Providing a Sense of Empathy and Justice
With practice and a positive attitude, judges adapted well to the technological challenges presented by online hearings. It was perhaps even more challenging to convey to the participants, particularly to the parties, the judges’ understanding of the human side of the matters before them. Nevertheless, some managed to do even that.47 It seems likely that these are judges who also possess this talent when presiding in person. But how does one project empathy and attention when communicating through small squares on screens? It seems to be a combination of three things: validating the emotional content of the proceedings, providing information in plain language to those who need it, and assuring that the participants feel that they were taken seriously and heard.
Adoption hearings provided a setting to recognize and share the parties’ happiness. Student observers made comments like “[the judge] was kind and genuine” or “[the judge] also asked the adoptive parents about the child and the new twins they have and how they all get along.”48 The online context also allowed more family members to participate. One judge tweeted:
Started the day granting an adoption, which was witnessed by a community of over 75 people from all over the world. There was much joy and many tears. So happy for this family. Good news during tough times.49
Just as is true in person, a judge who can deal in a supportive way with witnesses’ emotions communicates care and concern. Here are two examples shared by the student observers:
- “When [the father] began crying about his daughters, the judge allowed him to step aside so that he could grab a tissue.”50
- In a protective order hearing involving graphic allegations of physical and emotional abuse, “before going into testimony, the judge told [the woman seeking the order] that he knew that some of the things she would have to talk about would be hard, so that if she ever needed a break or a moment to herself, she should let the judge know and the judge would put her into a breakout room until she was ready to rejoin the hearing.”51
In other hearings, the judge took considerable time to provide plain-language explanations to parties who might otherwise have been lost or confused. For example: “When [the biological father, in a private proceeding in which his parental rights were to be terminated] asked questions regarding the hearing and what was going on, the judge was patient and explained everything to him.”52
A helpful discussion of the link between online hearings and participant sense of justice comes from the United Kingdom. In one of that country’s first online hearings, held over Skype, the court needed to decide whether to discontinue the feeding and hydration that was keeping alive a man who had a severe stroke (his daughter was the petitioner). The online hearing was discussed in a blog post by an experienced observer who “attended” the hearing with the daughter, who sought to discontinue the treatment, and her pro bono solicitor and barrister.53 While two other lawyers involved in the case found the process to be fairly effective,54 the daughter did not. It is worth quoting the observer’s concerns at some length because they demonstrate the important ways in which the online setting can detract from a litigant’s sense of being taken seriously:
In other cases I’ve been involved in, families have often talked about the gravitas attached to a courtroom hearing: the formality of architecture and room layout, the elevated more distant seat for the judge, the ritual of rising when the judge enters, the element of theatre. It can feel intimidating, but it is also reassuring evidence of the seriousness attached to the case and the ceremonial impartiality of justice. . . . The courtroom setting is designed as a formal arena for [letting the family feel heard].
With a hearing conducted wholly over Skype, all that gravitas is lost. Court architecture is replaced with the backdrop of barristers’ and witnesses’ living rooms. The judge appears up close and personal, just like anyone else with his face in a little square on the screen.55
In addition to the lack of “gravitas,” the online platform the court chose resulted in the daughter (quite legitimately) not feeling “seen.” As the lawyers explained:
There were times when she became upset but others in the virtual courtroom could not see this and so there was not the opportunity to modify their behaviour, or even have a short break, to avoid causing her unnecessary distress. Perhaps most concerningly she felt she became invisible to the court after giving her witness statement and wondered if she had . . . missed out on her opportunity to influence the court. [The] daughter’s perspective was that she was left wondering if justice had been denied her father because of the circumstances of the hearing. To her “it felt like a second-best option. It didn’t feel professional. It didn’t feel like justice.”56
The concern about invisibility provides another clue as to what helps litigants feel that they are being heard and valued. The judge chose to show only the face of the witness—which means that the witness did not see the face of the person asking the questions. Also, it means that the parties, including the daughter, were completely off screen when not speaking. This is roughly the equivalent of Zoom’s “speaker view.” The person who is talking (or someone who is just making noise) is the only one who can be seen, full screen. The student observers consistently reported that this view makes it very hard to follow what is going on. The same would doubtless be true for participating parties. Therefore, both for purposes of providing an appropriate sense of being heard and for the public transparency the online hearings strive to provide, judges should be urged to use “gallery” view for the livestream of the Zoom hearing, except when there is some particular reason to highlight the speaker’s face.57
This concern about the changes in party perception caused by the nature of the online interaction also has implications for the judge’s ability to control the behavior of lawyers and witnesses and set the tone of the hearing. On some occasions, the student observers noted that Zoom seemed to contribute to decreased deference to the judge. This comment is typical: “The sister-in-law was short with the [j]udge, and slightly rude to her . . . . I wondered if this would be different in a courtroom setting, because the [j]udge seems to be less intimidating over Zoom.”58
Judges are not the only participants in the online environment who face challenges and whose choices make a difference in the quality of justice dispensed. What about the lawyers?
V. Lawyering Skills, Old and New
The family court judges whose hearings were observed in this study, on the whole, did a good job using Zoom to oversee live hearings. For those hearings to go smoothly, however, the lawyers representing the parties also had to adapt well to the new context. Essentially, the lawyering tasks were the same as they would have been in person, but subtle differences in the online context required additional planning and preparation. The lawyers who had the greatest online success showed themselves to be adaptable, willing to plan, and able to master new skills and take on energy-consuming new tasks. Those traits were helpful even before the pandemic forced courts into new ways of working; they are even more important now, when trying to “wing it” can lead to disaster.
Similarly, advice about online practices reflects advice that would have been given before the COVID-19 pandemic. A lawyer’s appearance needs to be professional, as does the lawyer’s behavior.59 Lawyers need to speak clearly. They have to prepare for hearings—prepare their own presentations, prepare their witnesses, and think through the predicate for getting documents and other evidence admitted. They need, if possible, to be familiar with the setup of the courtroom. They need to consider the needs of the judge and the court staff (especially the court reporter). All of this is still true. But how does it manifest itself in the Zoom context, and what additional steps need to be taken?
The first crucial step is to be able to establish an adequate connection to the online hearing so that the attorney can hear and be heard by all participants. Although this was generally true, it is also noteworthy that of the hearings in which student observers took note of technological difficulties, about half included problems with the attorneys’ technology, and in many of these cases, the basic problem was the attorney’s ability to establish both video and audio connections with the court.60
Another basic requirement for lawyers is presenting a professional appearance. As one would do in person, the lawyer should dress appropriately (at least from the waist up).61 But now there are other variables: What lighting is needed,62 and what background will appear in the lawyer’s little Zoom square? Some attorneys chose to join the Zoom call from their offices, some from home. Some used virtual backgrounds. The choice of background can show more than the attorney may realize. Student observers commented on what inferences might be drawn from what one sees in the background. Is the desk messy? If the background shows the lawyer’s home, what does that look like: Unkempt? Overly lavish? Is a virtual background nondistracting and appropriately professional, or is it that beach scene so many people seem to like? Most importantly, will the lawyer’s Zoom background affect the judge’s assessment of his or her professionalism or credibility? As one student observer noted, “I found myself judging an attorney in a family case because his client did not seem very well off, but he was [speaking] in front of a massive glass wine cellar in his home. . . . This was the same guy that ignored his kid until his wife came to get her.”63 Another student commented on an attorney’s background showing a “very messy room.”64 The students’ observations raise questions concerning whether the backgrounds in any way influence how the attorneys are perceived by the judge or by the parties.
Knowing how to use all of the Zoom functions that the court will use is a key equivalent of knowing the courtroom, but more so. The attorney should be familiar with waiting rooms and breakout rooms and, above all, know how to use screen sharing to exhibit documents to the court and witnesses. They should also be familiar, if possible, with each particular judge’s Zoom protocols.65 How will the judge handle the hearing? Will the judge enable the chat function (so they can spell names and unusual words for the court reporter)? Will they be muting the participants? Lawyers who failed to master Zoom skills sometimes found themselves unable to introduce evidence, unable to confer privately with a client, or just prolonging the hearing for everyone as time was taken to walk them through the required process.
Preparing for the attorney’s own oral presentation, as always, includes thinking carefully about its content. If time permits, it may also include practicing what the attorney plans to say. Zoom hearings add a new step: practicing arguing the case over Zoom.66 This means the attorney should practice logging into Zoom using the device he or she will use for the appearance. It also requires thinking about screen placement, camera and microphone67 placement, posture, and how to simulate eye contact by looking at the camera. Even talking is a bit different: Zoom arguments require speaking a little more slowly than one would in person; Zoom often has an audio lag, so in addition, more pauses may be needed.68 As one student observer noted, “Those who had practiced over Zoom had a different posture and seemed to realize how they were presenting themselves on a screen . . . I think it gave them quite an edge.”69
Similarly, preparing witnesses to testify requires not only the usual preparation, but also preparing them for what it will be like to participate in a Zoom hearing, and how that will affect their direct and cross-examination. If the witness is not coming to the lawyer’s office for the remote hearing, preparation will also include technological advice (for example, what device to use, how to connect, whether to use headsets, and what to do if there’s a problem). Other topics might include how to choose the best place from which to join the hearing (considering bandwidth, privacy, and quiet). Lawyers can also discuss ways to help the client choose a suitable background because in family law cases, shots of home conditions may affect the judge’s assessment not only of credibility but also of the home environment more generally. If possible, lawyers should make it possible for the client to actually practice participating in a Zoom meeting. All of this, of course, may be unrealistic for some clients.
The attorney will also want to set up some kind of back channel to communicate with the client. It would not be proper to try to prompt the client while testifying, but for many things that may come up during a hearing, the attorney and client would benefit from a quick conference. In person, addressing unexpected issues is easily accomplished by passing notes or with quick whispered exchanges. If the attorney and client are in the same physical room during a Zoom appearance, they can still communicate privately by muting their microphone. Communication between clients and attorneys during online proceedings is more challenging if the attorney and client are in different places. For longer conversations, the judge may allow counsel and their clients to meet in breakout rooms. But for quick consults, setting up in advance a system such as text messages, WhatsApp, or Slack will allow those crucial communications while preserving attorney-client privilege.
Effective use of documents also requires the usual planning plus extra forethought. For hearings that involved multiple documents, especially long documents, thoughtful attorneys provided digital versions of the documents in advance. In this way, all parties had the documents available to them during the hearing, even without Zoom’s screen-sharing function.70 As always, lawyers need to think through the predicates necessary to get a document admitted into evidence, including authentication. When the document to be introduced is someone’s social media post (quite common in family law hearings), that can already be tricky.71 Lawyers must consider additional hurdles that might be posed when the witness through whom the exhibit will be introduced is not in the courtroom and possibly not in the same physical location as the document. For example, will witnesses be connecting to the hearing in a way that lets them see the proposed exhibit?
For technical authentication reasons, as well as for the strategic use of evidence, it is crucial for lawyers to master the use of the screen-sharing function. By the time the student observers began their work, courts had been online for about six weeks, and so they saw many cases in which sharing documents was done well and uneventfully. Some examples:
- Both parties introduced various court orders, text messages, and financial documents into evidence; all documentation was screen-shared, but each party seemed to have digital copies.72
- A father’s attorney shared some happy family photos, some Our Family Wizard73 messages, and an outline of expenses that the father testified to as his medical expenses, extracurricular expenses, etc. Evidence of the mother’s income was introduced as well (paystubs), and proof of service. Both attorneys used screen sharing effectively and without issues.74
Lawyers should also be mindful of how long exhibits remain on screen. While generally they were only displayed long enough to be introduced and for the witness to be questioned about them, one lawyer interviewed mentioned that lawyers had kept things like a grisly picture of a client’s bruised face, sad photos of a child with bruising on his face, and a picture of the opposing party “hunched over a bucket throwing up due to having had too much drink” on the screen far longer than was required.75 If the attorney presenting these exhibits does not end screen sharing, the exhibits could even remain on display for the remainder of the hearing.76
Unfortunately, screen sharing did not always go well. That was sometimes due to the attorney’s failure to master the technology involved. For example, in one June 11 hearing, “there was some exhibit that [the lawyer] wanted to admit and [the lawyer] was going to try and share his screen to show it. He struggled figuring out how to do this. One of the judge’s clerks was able to email a copy of the document to opposing counsel so that everyone could view the document from their own screens.”77 As in this case, problems with documents were often solved by court personnel finding a work-around.
Long documents present a particular problem.78 Scrolling on a screen through a long document searching for the relevant text is ineffective (and may annoy the judge). The technology does, though, make it possible for the judge to read through a document if there is no alternative. Better-prepared lawyers bookmarked the portions of documents they wanted to call attention to and could go directly to the desired portion of the text. Zoom-adept lawyers used the screen-sharing feature that allows annotations (the user can “draw” on the screen to identify the language at issue), or used the advanced sharing tab and chose “Portion of Screen,” which provides a green box that can be moved over the desired language.79
Alternatively, for firms that can afford two people at the hearing, one lawyer can question the witness and share the full document, while another can show preprepared slides containing the crucial language. This can be very helpful, for example, when working through long exhibits involving the party’s finances. What the attorney does not want is this: “When pointing out specific statements on the exhibits, the witness struggled to show [the] attorney where that statement was located on the document.”80
Despite the new challenges, most of the attorneys observed have managed to cope adequately with the Zoom technology—finding professional locations from which to appear, preparing testimony and exhibits, speaking audibly, and finding an effective way to share documents. Not everyone was equally smooth, and even attorneys sometimes had audio and bandwidth struggles, but on the whole it has worked. In mid-June, the Texas Office of Court Administration took an online poll of 3,744 licensed attorneys, 76% of whom had a remote hearing during the pandemic.81 Ninety-three percent of them had a positive or neutral impression of the hearing.82 Ninety-three percent had no issues communicating with their client during the hearing.83 And less than five percent believed that livestreaming altered the conduct of any participant.84
The most significant struggles, from both a systemic and personal perspective, were had by the parties (especially self-represented parties) and witnesses (especially those not accustomed to testifying in court). On the other hand, some parties and witnesses also saw the most significant improvement in access to courts and hearings. The next section turns to their experiences.
VI. Parties and Witnesses
This section focuses on the parties and witnesses who were involved in the online hearings. A few were professionals whose role in the system frequently involves testifying, such as social workers, psychologists, police officers, guardians ad litem, and CASA (both staff and advocates). Many, though, were “one shot players,”85 people whose only personal experience of appearing in court occurred because of their connection to a particular family dispute. With some early exceptions among CPS caseworkers, the testifying professionals experienced few problems online—they were able to sign into Zoom, their broadband was adequate, and their experience as witnesses in person helped them know what to expect online. On some occasions, the student observers noted that the online context may have been helpful to those witnesses because it saved them a trip to the courthouse for what proved to be a very short hearing.
It is the second group—inexperienced witnesses, and especially those who were self-represented—that was more affected by the switch to online hearings. Self-represented parties and witnesses would not have had the benefit of the extensive preparation by an attorney described in the prior section, nor were they apt to have had experience in an in-person courtroom to help them know what to expect. Some nevertheless did quite well with connection, location, and content. Others did not.
To put their participation in context, it is important not to idealize the experience of self-represented litigants in the physical courthouse. As a guide published by the Association of Family and Conciliation Courts noted in 2017:
More often than not, self-represented litigants are out of their comfort zone and in an unfamiliar environment. Litigants often come to court worried and fearful about their children, their property, and how their life will be affected through the court process. This fear may manifest as anger, leaving court staff to address confused, unhappy, and occasionally difficult litigants.86
When the ABA surveyed 1,200 nationwide judges in 2010, those judges reported that self-represented litigants faced significant difficulties in dealing with the court system.87 Reported problems in evidentiary hearings included “failure to present necessary evidence (mentioned by 94% of the responding judges as a problem linked to pro se representation), procedural errors (89%), ineffective witness examination (85%), . . . failure to properly object to evidence (81%), and ineffective arguments (77%).”88 We need to keep in mind, then, that many of the problems described below did not begin with online hearings and would be present even in hearings conducted in person.
A. The Good News
One huge concern from the outset was whether civil litigants and witnesses would be able to access online proceedings. The well-known “digital divide”89 prompts concern that poor, elderly, or rural citizens might not have access to the kind of technology that would allow meaningful participation in a hearing on Zoom or similar platforms.90 It turned out, though, that some connected through their attorneys’ offices, some used facilities at the courthouse,91 some had computers with adequate internet access, and just about everyone had a cell phone.92 One indicator of the population’s internet access is a survey of eligible Texas jurors that was conducted June 8–11 for the National Center for State Courts.93 It found that only one percent of respondents had neither internet nor cell phone access.94
In fact, court observers such as judges and experienced CASA staff reported an increase in participation. “[T]he unexpected plus has been a much higher level of parent participation than we see with in-person hearings. I believe stakeholders are gaining a much greater appreciation of how difficult it is for many working parents to arrange transportation and work leave to attend in-person meetings.”95 Especially important for parties and witnesses who work in jobs where they are paid by the hour, and paid only when at work: A brief online hearing appearance can be accomplished during a break from work, allowing a person to participate in a hearing without losing any pay, while a trip to the courthouse might require loss of an entire day’s income. One judge recounted the story of a witness who successfully testified from a Wal-Mart restroom, dressed in her Wal-Mart uniform, while on her break.96 Professionals involved in the hearings were also able to give their testimony effectively without the loss of time that would otherwise be involved in travel to the courthouse and back.
Most of these lay participants also found an adequate location from which to participate in the hearing. Many were in their homes or offices, in rooms that were free of distraction where they were alone while testifying (some of the ones at home did have occasional sounds of children in the background). Some found their quiet place in a parked car. A handful testified from jail.97 Some participants were located far from where a physical hearing would have been held, including distant states.98
The student observers consistently reported that hearings on uncontested matters went smoothly for parties and witnesses.99 This was particularly true of hearings such as uncontested temporary orders, status conferences, adoptions, and the entry of final uncontested decrees. Even if a participant had some initial difficulty in signing on, the judges generally were able to help them connect. These types of hearings tended to involve either no taking of evidence or the asking of routine questions with no cross-examination of witnesses. For those hearings that involved documents, many documents seemed to be on file with the court (or to have been shared among the parties) prior to the hearing. Attorneys were also generally able to use screen sharing where necessary, and one self-represented party managed to hold three documents up to his computer screen so that the judge could read them.100
Even parties and witnesses with some difficulty connecting were able to do so after help from the judge. Here is a sampling of typical student observations:101
- [The mother] was having problems connecting to the audio initially. They had to pause the hearing at the beginning so her attorney could help her. Also, the judge intervened when we couldn’t hear the parties and helped to unmute them.102
- We had to wait for [the father] to get online. I believe that [the father] joined the meeting using his cell phone. The image was much more shaky and lagg[ed] [more] than the usual computer webcam. He was not able to use the chat function.103
- [The mother] was streaming from her cell phone. When she was about to testify, she had to take her phone off the charger to plug in her headphones because the court reporter could not hear her without them. She claimed that her phone only had 10% [battery]. [H]owever, it did not die while I was observing.104
- When the mother began her testimony[,] there was loud feedback when she spoke, so the judge walked her through logging out, turning off [the] mic[rophone] from [her] laptop, and dialing in on her phone. [It only] took about [two] minutes and [the judge] had it all taken care of.105
Accessing a hearing through the Zoom app on a cell phone does have its limits.106 Generally, phones only allow users to view one application at a time, so a person using Zoom on a phone would have to switch between applications to refer to documents that were not already on Zoom. Multiple applications are not visible on the phone screen at once, as they would be on a computer. Even once accessed, documents can be hard to read at that size.107 Further, getting access to things outside of Zoom requires switching between phone applications.108 For example, if a witness needs to refer to an email, a text message, or a document attached to either, she will need to switch back and forth on the cell phone.109 Judges report, however, that those witnesses seem to be adept at cell phone multitasking and generally managed the feat when needed.110
B. The Bad News
As discussed above, many of the problems resulting from connection issues were relatively minor (for example, a witness had to repeat his or her testimony)111 or quickly fixed (speaker unmuted herself; witness logged in again; witness eliminated duplicate audio feedback; witness switched to a different device). However, some hearings had audio problems that were never fixed.112 From the student observers’ perspective, that just made it hard to hear. What is more worrying is the potential impact on the merits of the case, and the parties’ feelings about the fairness of the hearings. For example, could the judge hear? Could the court reporter hear well enough to develop a proper record of the proceeding? In addition, some hearings were marred by problems that stemmed more from participant attitude than from technology, and it is possible that similar behaviors would not have occurred in the courthouse. Many problems were exacerbated when one or more of the parties were self-represented.
The following vignettes give a sense of the way in which technology, inexperience, and emotion could coalesce into very difficult hearings:113
- In a custody dispute, the mother attempted to cross-examine the maternal grandmother (i.e., her own mother), but the mother was unable to hear the lawyers or the judge.114 The paternal grandmother seemed to ramble on after being asked questions by the attorney, which caused a lot of interruption. The attorney tried to keep the paternal grandmother on topic and keep her in the direction that she was wanting the questioning to go. Towards the end of the paternal grandmother’s testimony, she got a lot better at only answering the questions asked of her instead of rambling on. The mother, because she was self-represented, wanted to speak herself. The court reporter continued having problems hearing her, and the judge had to ask her to slow down while she was speaking. The mother was streaming from her cell phone. When she was about to testify, she had to take her phone off the charger to plug in her headphones because the court reporter could not hear her without them. While the paternal grandmother was testifying, she received notice on her computer that she had a low battery, so she had to pause to plug it in. She seemed distracted while testifying immediately after that. The judge had children talking in the background of her feed, which was pretty distracting at times. At 11:58 a.m., she had to pause the mother’s testimony for two minutes so that she could “put her kids away.” Additionally, the judge was dressed very casually.115
- In a contested custody hearing, most of the witnesses had initial problems with connecting to audio, but those issues did not persist. At one point, the mother’s attorney was cross-examining the father. It seemed as if she wanted to use quotation marks with her hands to quote something the father had said earlier, but you were not able to see it clearly through her screen. The mother’s attorney seemed to try to aggravate the father during her cross-examination through the types of questions she asked. The father’s attorney objected, saying that she was badgering the witness, but the judge overruled the objection. The attorney’s approach may have been more effective in a courtroom setting where she could better read his body language, alter her own body language, and use inflection in her voice. There was quite a bit of overlapping and interruption between the witnesses and the attorneys. At one point, the mother’s brother underwent direct examination as he was walking from his work office to his car. When he got into his car, music began to play, at which point the mother’s attorney had to pause her questioning so that he could get situated. It looked as if the mother’s brother was going to start driving while he was being examined, and the judge interrupted, telling him he could not drive and testify at the same time. The judge did not let him continue until he stopped his car.116
Some of the less-successful hearings also involved parties and witnesses in poor locations. A lack of privacy and quiet were particular problems. For example, one student observer reported that “multiple times when [the grandmother] was testifying, people were talking in the background, which was distracting.”117 Other occasions involved the witnesses themselves, as when the father was “walking around outside and smoking during this hearing. . . . Later, he had his camera covered up and his screen was black. For longer periods of time, his camera was on the roof of his car.”118 Most worrisome are the reports suggesting that another person present in the room with the witness was influencing the witness’s testimony. For example: “[The mother’s] [a]ttorney brought up that she thought that [the grandfather] (who was sitting next to [the grandmother], who was testifying), was feeding her answers.”119 Problems such as these would not likely have occurred in an in-person courtroom setting.
In summary, many parties and witnesses had adequate technology, and/or were supported by their lawyers. Although many parties and witnesses used cell phones rather than computers to connect to the hearing, they made that work. Many participants had brief technological issues that were expeditiously solved, or successfully repeated their testimony so everyone (especially the court reporter) could hear it. But in a few cases, the combination of technology and circumstance resulted in a hearing with pervasive problems.
C. Privacy Concerns
Broadcasting court hearings on YouTube raises their visibility, even though in theory those hearings would have been open to the public if held in person. In order to try to deter widespread dissemination and misuse of the hearings, Texas courts prohibited the recording of YouTube broadcasts; recording the proceeding may constitute contempt of court.120 Texas courts also instructed judges that they may take the broadcast down as soon as the hearing ends.121 Courts were also instructed on how to disable YouTube’s comment and rating features for the court channels.122 But the point of broadcasting the hearings is to provide public access, and the prohibition of recordings cannot stop community members, family, or employers from watching the livestream if they happen to know it is there. Consequently, there is an incremental loss of privacy that stems from easier access to hearings.
A more significant concern comes in cases when a court sitting in person might take steps to protect participant privacy. In many types of cases, but especially in family law cases, issues are discussed that fall into areas often considered to be quite private. Some information is about parties’ home addresses or personal identifiers. Some information is financial. And some information is sexual or related to the status of children.
In some cases where the public broadcast of hearings on YouTube raised particular concerns about privacy, courts chose to either modify evidence or stop the broadcast to minimize those concerns. Sometimes it was just a matter of remembering to redact information contained in documents before they were shared on screen, or providing copies of documents to all parties in advance so that screen sharing was not necessary. For example, in one case in which the court was hearing evidence about the parties’ finances, one exhibit was the husband’s bank statement. “Before sharing, the parties had to make sure that the document was redacted. They went off of the record before this was allowed to be shared to ensure that both attorneys were okay with what was being shared on the screen. This took roughly ten minutes of break to make sure everything was fine.”123
More worrisome is the challenge of protecting more personal kinds of privacy. Courts have used available technology to try to achieve a degree of confidentiality online. For example, judges who would otherwise meet in their chambers with minors to discuss issues regarding custody could do so in a breakout room. Those private online conversations apparently could be quite robust.124 Sometimes, evidence may be of a sensitive or embarrassing nature. One dispute about custody, for example, involved allegations that a baby had developed a severe diaper rash. The attorney offering a photo of the rash as an exhibit asked the judge not to share the pictures on the YouTube livestream; the judge did not do so.125 Another student observation noted that the court had taken the hearing offline to hear testimony about the couple’s young son.126
Some types of hearings are especially likely to involve private information, and judges can foresee the need to go offline with the livestream. For example, Dallas County has a rapid response specialty court for protective order cases. One judge from that court noted, “There are [privacy] concerns, but there is a process by which litigants may request that the court limit the broadcast of private information. . . . There is a slight delay, so twice I have stopped the broadcast sua sponte [in order to] protect children.”127
The next section of the Article shifts its focus from the impact of online hearings on their participants to systemic concerns about their efficacy in performing one of the key functions of courts: facilitating decisions based on contested facts.
VII. Remote Fact-Finding and Concerns About Accuracy
The use of Zoom as a virtual platform for uncontested hearings is the least controversial type of online proceeding. This is unsurprising, given that this study’s observations showed that uncontested virtual proceedings tend to go smoothly, especially now that judges and lawyers have become more adept in using Zoom. The author’s interviews with attorneys as well as her general observations of lawyers’ comments on social media also reflect that lawyers appreciate the time saved through online hearings of uncontested matters.128 Similarly, even contested hearings that do not require the taking of evidence—such as attorney oral arguments, or hearings that involve evidence conflicts based only on documents—have widespread support. Even if there are technical glitches in those cases, it tends to make little difference. But from the beginning, there has been one major source of concern: How effective can examination and cross-examination of witnesses be on Zoom?
One source of concern comes from the inability to know whether the witness is alone and answering questions without relying on notes.129 As mentioned above, some witnesses are not completely alone, although when that is apparent, judges have asked the witness to relocate to a private setting. (One attorney responding to the OCA survey reported that a judge had suggested asking witnesses to rotate their cell phones 360 degrees to show that the room was otherwise empty.)130 Some participants worry about witnesses being coached by their attorneys, whether in the same room or through technology such as text messages. Sometimes concerns about a witness reading such messages, or reading from notes, are triggered by looking at the witness’s eye movements on screen. In one hearing, the mother’s attorney objected that the grandmother was reading from notes from off screen—and she was right. The court took a break so that the grandmother’s attorney could talk with her and send a copy of the notes to all the parties. After the parties returned from their break, the mother’s attorney sought clarification that the grandmother would not be able to read from her notes.131
A related worry involves the logistical challenge in an online hearing of “invoking the rule” that nonparty witnesses should not be present when other witnesses testify before they give their own testimony. In an in-person hearing, people who will testify are excluded from the courtroom so that they cannot listen to the testimony of other witnesses and change their story to be consistent with others. But how does one reliably enforce that exclusion online? Generally, it comes down to trusting the people involved and making them state under oath that they are alone in the room. The court can put the witnesses into a Zoom waiting room, but that goes only so far. There are multiple ways to violate the instruction of not to listen to prior witnesses. One, of course, is to be physically in the same room with another witness when that witness testifies. But when hearings are livestreamed on YouTube, a witness only needs another device to watch or listen to the hearing. The rule remains, and as far as we know witnesses comply with it, but it is difficult to meaningfully enforce the rule against those who want to cheat.
Most fundamentally, attorneys might worry that they will not be able to effectively cross-examine a witness when they are not physically in the same space and able to observe the witness’s body language (not just his or her face), and free of potential obstacles that could buy a deceitful witness time (for example, by falsely claiming that bad audio prevented the witness from hearing the question). The worry is especially acute for disputes that turn on the comparative credibility of witnesses testifying about events, which may often be the case in family law matters. Ultimately the question is an empirical one, and the most important issue is whether the judge can accurately make decisions about disputed facts based on that remote testimony.
There have been few studies to help us go beyond gut feelings about this. Although pop culture tends to glorify in-person confrontation, consider the perspective of the fact-finder/judge. One valuable reminder about the judge’s perspective is that in many physical courtrooms, the witness box is not close to the bench and the judge has a profile view of the witness. On Zoom, in contrast, the judge can choose a “speaker view,” resulting in a full-screen closeup view of the witness’s face.132 In that sense, the judge has more information online to judge credibility from facial expressions than she does in person. Nor is it clear that a full-body view would provide body language inconsistent with what the witness’s face shows. Even the witness’s choice not to make eye contact133 with his or her camera (one of the fears lawyers have) can itself be a credibility indicator.134 Further, the content of the testimony—and comparative testimony of multiple witnesses, alignment of testimony, and other evidence—is available online just as when in person.
Conversely—but supporting the same conclusion—empirical studies create reason to doubt that our evaluation of demeanor evidence is reliable in any case. “In general, people, including judges, are much less accurate than they think they are when they seek to use witnesses’ demeanor to differentiate truthful from untruthful testimony.”135 Assessment of demeanor evidence also raises issues of equity:
Demeanor is understood to be a guide to a witness’s credibility in the sense that we can “read” it for clues to a person’s truthfulness. Probing behind this assumption reveals it to be both culturally mediated and without basis in science, rather than reflecting a truism about human beings. Other cultures have different expectations about the revelatory nature of demeanor that, in turn, reflect different beliefs about the relationship between the internal and the external. Further, “reading” demeanor is often largely an exercise in drawing comparisons between the reader’s expectations about how a forthright or honest person should look, sound or otherwise appear.136
On the other hand, there are reasons to worry that online witness examination can be less informative. The student observers’ reports indicate that in at least some cases, the image of the testifying witness on Zoom may be of lower quality—video quality may be poor, audio quality may be poor, or the witness may be distracted or in a noisy location. Some witnesses may resist the questioning process. Lawyers and witnesses may talk over each other (as they no doubt also do in person, but Zoom-based audio lag likely exacerbates the problem).
Experimental studies of the impact of videoconferencing on factfinders’ perceptions of the witnesses (done mostly in the criminal law context) have had mixed results.137 While some studies found no significant difference in decisions between in-person and videoconference proceedings, other studies did find a difference in various metrics.138 Beyond the actual truth/falsehood question, the lack of body language may affect perceptions of witness likability. Also, the conditions of testifying online may cause some witnesses to seem (or actually be) disengaged, which may in turn impact credibility. More research is needed as we move forward with online hearings and have actual experiences with witness examinations and judicial decisions before a more reliable assessment can be made.
VIII. Lessons for the Future
As the introduction to this Article noted, experimenting with technology would not normally have come so quickly to the courts, but necessity thrust it upon them. These experiences have shown that virtual proceedings—or components of proceedings—have advantages that can carry forward into a post-pandemic world. For many types of hearings, the efficiency gains are clear and the trade-offs are almost nonexistent. In addition, despite fears of harming the public’s court access, it turns out that YouTube broadcasts make hearings quite accessible. In fact, the increase in access is so important, and so dramatic, that court systems that provide access to online hearings only in response to specific requests should consider adopting a livestreaming model. It is also clear that remote appearances have real advantages for some parties and witnesses. On the other hand, even in civil cases, there remains a concern about the less-tangible, hard-to-quantify importance of having human beings meeting together in the same physical space.
The pandemic has also highlighted some societal inequities that have existed for some time. Some of these inequities are outside the court system, such as food deserts, healthcare inequalities, and a very skewed access to technological infrastructure. Some, though, are integral parts of our system of administering justice, particularly the unaffordability of attorney assistance to large swaths of the community and the chronic underfunding of the court system. When thinking about lessons learned from the online court experience, we need to think more broadly about the intersection of courts and society.
A. What Can Stay Online?
Someday it will be safe to hold hearings in person again. But should we default to that? Judging from the student observers’ reports and interviews with judges, most uncontested hearings can easily remain online.139 “Prove-up” hearings,140 status conferences, adoptions, CPS matters with uncontested recommendations, agreed temporary orders, and the like were conducted effectively online. The technical challenges experienced at the beginning of the pandemic as judges and lawyers learned to connect to Zoom have already substantially diminished,141 and greater facility with screen sharing makes the use of documents more effective. The efficiencies are considerable. The online hearing avoids the time loss of traveling to and from the courthouse—a time for which paying clients would otherwise be billed, and which sometime exceeds the length of these comparatively short hearings. Even when judges set several hearings at the same time, participants can do other work while in the Zoom waiting room instead of just sitting on a courtroom bench. Judges who took the time to master using Zoom waiting room and breakout room functions managed to have several matters proceeding simultaneously. These judges could switch between matters as they needed direct judicial involvement, adding a saving of court time to that of lawyer time. With the judge absent, parties could do a variety of tasks—such as negotiate, talk privately with clients, or work with court personnel—that did not require the judge as observer or decider.
These hearings often allow for—or require—the presence of the parties. As discussed above, for many people, it is far easier to participate remotely than to travel to the courthouse. It also makes it possible for parties or witnesses to participate without having to be in the same place as an estranged spouse or abusive family member. All of the judges interviewed reported that they saw an increase in participation by the parties (including happy crowds of friends or family (some living far from the courthouse) in adoption hearings, and even more participation by parents in CPS hearings). Witness testimony can also be effectively managed in these cases. While some participants’ behaviors (sitting in bed, smoking, walking around) detracted from the hearings, courts could develop local rules to help more clearly set expectations and help the parties present themselves in a positive light. In more extreme cases, judges could use their power to mute disruptive participants.
Some types of contested matters may also remain online. For example, the study showed effective and routine handling of matters such as discovery motions, fee contests, and other hearings that consisted of attorney oral arguments, including those where documentary evidence was involved. Even hearings involving oral witness testimony for contested matters often proceeded without problems. And here, the improved ability for participation—without needing long travel time, loss of income, and child care—must be weighed in the balance. In addition, witnesses accustomed to testifying had fewer problems participating in online hearings, and when they did, it was attributable to their lack of home computers or broadband in the initial emergency shutdown.
The weak link in the use of online hearings remains access to technology. The online hearings work, but they could work better. Stronger signals would help with audio and video quality—allowing everyone to hear each other better, and also shortening hearings by minimizing disruption. More widespread availability of broadband access in both low-income and rural communities could also help make the remote access of parties and witnesses more effective, especially for those currently connecting using cell phones on plans with limited data or minutes.
This is a very solvable problem, but it requires government spending. The internet is now so crucial to modern life that providing public wi-fi access should be as standard as providing roads. This has also become clear as school systems have had to offer online instruction—school districts have worked to provide multiple neighborhood hot spots, especially in low-income neighborhoods.142 Libraries, ever a source of community support, have provided increased access even during shutdowns.143 Court funding is also key. Some courthouses, especially in rural areas, may also need better equipment and more robust internet access.144 Technology has costs, and a well-functioning system also needs to provide training for judges and court staff as well as competent and available tech support. A staff member tasked with helping inexperienced witnesses use the necessary technology would help both litigants and the courts.
In considering what could stay online, we must also bear in mind that the issue is not all or nothing. There may be hearings that can, on the whole, be conducted safely in person, but in some individual cases, physical attendance would be impossible or create great hardship for one or more participants. Now that courts have witnessed the efficacy of online testimony, or just online observation, courts could accommodate people who would face hardship in attending a hearing that would otherwise be an in-person hearing.
B. What Should Happen in Person?
Some Texas courts have resumed in-person hearings using various protective measures such as symptom reporting, maximum group size, physical distancing, and masks or face shields.145 As physical hearings become possible, are there certain types of hearings or components of hearings that should be done in person if feasible? One answer would be to identify the types of proceedings that are hard to control online and schedule those for in-person treatment. Judging from the student observations of civil cases, the online context was most difficult to manage for contested hearings that involved a large number of participants;146 conflicting testimony on material issues, for which witness credibility would be the key to fact finding; or serious and insoluble technology problems that could be anticipated. Especially when self-represented parties were involved, difficulties also predictably ensued where there was animosity between the parties or emotions ran high.147
As judges gain experience with online proceedings, and with advanced planning of the court and the parties, some problems in these contexts should be avoidable. As is always the case, the willingness and ability of the judge to use all of the tools available is a crucial factor in controlling the proceedings. Judges, together with attorneys, can improve the quality of online hearings by planning document sharing, preparing clients and witnesses for the nature of the online experience, creating systems to deal with audio lag and objections to testimony, and controlling squabbling lawyers who talk over each other. But judges do not have magic wands to eliminate family rancor. It will remain difficult to manage large groups on Zoom. And, at least intuitively, some lawyers may feel more confident in their ability to control the flow of cross-examination when facing the witness in person. In-person proceedings may also be needed when a person must be in the courtroom for enforcement purposes, such as show-cause proceedings when contempt of court is anticipated.
It is more difficult to clearly define situations in which the human element demands the physical closeness provided by in-person hearings, or the formality and dignity of the actual courtroom. In considering this issue, it is important not to romanticize that experience, just as it was important not to assume that witnesses have more ready access to justice at the courthouse. But it seems likely that there are times when the possibility of physical touch is important, times when necessary confrontations are more powerful in person, times when predictable bad behavior needs the threat of physical coercion to curtail, times when the ability to “read the room” based not just on individual faces is important, times when physical presence establishes a critical sense of community, and times when the architecture of the courthouse is needed to signal dignity and respect. Empirical proof of this effect would be difficult to obtain. Party requests for in-person hearings would be a marker of, at least, the subjective belief that the values of being together outweigh issues of access and efficiency, so long as the court could strip out requests based on habit, fear of technology, or an attempt to game the system by delaying a hearing. This is an issue that requires further study as we move forward.
C. Beyond Zoom
There are a number of institutions in U.S. society whose images have been centered around buildings. These include courthouses, houses of worship, and university campuses. Being forced online has compelled those institutions to have deeper conversations about identity, attempting to focus on the essence of what they are and what they do.148 The building, after all, is a location or a symbol, but what is the institution really about?
In the case of courthouses, they are powerful symbols. As William Faulkner wrote:
[A]bove all, the courthouse: the centre, the focus, the hub; sitting looming in the centre of the county’s circumference like a single cloud in its ring of horizon, laying its vast shadow to the uttermost rim of horizon; musing, brooding, symbolic, and ponderable, tall as cloud, solid as rock, dominating all: protector of the weak; judiciate and curb of the passions and lusts; repository and guardian of the aspirations and the hopes. . . .149
The lessons of the pandemic-forced online court, however, do not turn on the court’s symbolic value. They provide an opportunity to reflect on the court’s function. Because we could not center our energy on events at the physical courthouse, we got the opportunity to look more closely at the needs of the participants. Further, the technology used during this time illuminated the possibility of making the courts work for their ultimate beneficiaries, the parties themselves. Going forward, the court system needs to keep its focus on that because that focus will open the door to innovation.
In many ways, the movement away from the courthouse as a building is a story of dispersion. Participants dispersed physically as everyone participated from home or office. As discussed above, that dispersion increased the participation of parties and witnesses, especially those who were not represented by lawyers. Dispersion of location, in most cases, created efficiencies for all of the participants—it saved time for courts that used Zoom well to manage their dockets; it saved time for lawyers who no longer had to drive to the courthouse or sit idly on benches waiting to be called; it saved time for parties and witnesses for the same reason, and in some cases it created an ability to participate that had not existed before.
To some extent, because of the difficulty of enforcing anything at a distance, power dispersed somewhat as well. In addition, on a Zoom screen in gallery view, everyone’s square is the same size. As Chief Justice Bridget Mary McCormack of the Michigan Supreme Court observed, “The litigants really like the Zoom platform and I think it has something to do with the equalizing nature of every Zoom box being the same si[z]e, like it empowers them to feel like they can speak their mind in a way because they’re the same size as the judge and the lawyers. . . .”150 One court (the Salt Lake City Justice Court) went even farther toward sharing power when it used an online mechanism (Doodle!) to let parties self-schedule hearings within time slots created by the court.151
Notice of some online hearings might disperse, aiming at a wider audience, by making more information available to the public. Sharing information about scheduling could allow more people to watch the hearings. Michigan, for example, is experimenting with using text messages to notify the public of hearings and other court events. “Dentists and cable guys can do it, why not courts?”152
If the court system’s thinking about hearings focuses on the needs of the parties, it also can change our thinking about what happens in person. If participation from home is far more manageable for online hearings, in-person hearings might also explore ways to accomplish similar ends. The current court system has assumed that parties must come to the court; instead, the court might come to them. For example, some Texas bar associations, legal services organizations, and other groups have, in the past, organized neighborhood clinics in accessible locations such as community centers, libraries, and houses of worship.153 The clinics do intake screening, and volunteer attorneys accept some participants as clients. That in itself is quite helpful. But it could be even better if the court, in the person of the judge, comes to the neighborhood clinic as well. Those hearings may not only help save travel time but also help avoid the need to lose work time (income) traveling to the courthouse and back, and the need to find child care for young children. At minimum, judges could schedule hearings to finalize agreed divorces at those same community-based locations. Showing this kind of care and concern for the public, and making proceedings more transparent, can also help the courts themselves by increasing public understanding of whom the courts are for and what they do.
Whether online or in the community, the court would be more meaningfully accessible if the litigants were represented by counsel. The broadcast of family court proceedings makes visible to the general public something of which family court participants were already well aware: the enormous number of self-represented litigants. To some extent, technology such as smart apps, online forms, and courthouse kiosks may provide some support to these litigants. But the lack of affordable representation for family and other matters is a huge issue for the justice system.154 The lessons of online courts underscore the importance of legal representation, particularly for proceedings involving parents and children.
Thinking about the courts as part of the community may also reveal opportunities for courts to partner with other community institutions. At the most basic level, this involves a broader look at everyone’s building use: Is there room in the library for a courtroom? Is there room in the courthouse for a social service agency? Is there room at a school for self-help legal kiosks? Can all of them provide Wi-Fi hotspots for the community? At a deeper level, there may be ways to identify overlap in the missions of these institutions that allows collaborations that go beyond the sharing of physical space.
Finally, while this section has focused so far on parties and witnesses, the online experience has also demonstrated that many lawyering tasks can be effectively done online. While it’s possible that attorneys would hesitate to appear remotely when opposing counsel is in person, the technology clearly makes it possible for added flexibility for attorneys who are juggling multiple responsibilities, whether that be multiple overlapping hearings, family responsibilities, or travel. In a world in which online hearings and hybrid hearings are possible, courts can consider online tools to ease the burden on attorneys as well.
It took years for Texas courts to set up and require a system of electronic filing; the transition to Zoom hearings on YouTube came almost overnight. It is unlikely that the court system would have chosen to test online hearings so broadly, and certainly not without months of committee meetings, deliberation, and surveys of stakeholders. But what a silver lining: The need to use online meeting technology has demonstrated ways in which technology can increase access to justice and create efficiencies for all of the participants.
As in other contexts, the pandemic has also made longstanding inequities more visible: Poverty, the distribution of technology, residential patterns, and access to attorneys all affect access to justice in ways that challenge our aspirations to fairness and justice for all. Online courts cannot solve these problems, but visibility may be a step toward finding the political will to seek solutions.
Going forward, courts can continue to make online hearings available (so long as the state will pay for the Zoom licenses). They can also allow witnesses who cannot travel to the courthouse to testify online even in an in-person hearing, something they might not have been willing to consider pre-pandemic. Looking at the bigger picture, courts can use the lessons of the online interlude to think of themselves as a service rather than a building and seek out ways to reverse the old assumptions—not that people must come to them, but that courts exist to serve the people, and sometimes that means serving them where they are. When the pandemic is no longer forcing the issue, there will be a tendency to reach for the familiar, to return to “normal,” and to go back to a world where time-consuming deliberations discourage innovation. It does not have to be that way; these lessons should not be lost, and the courts can reach for better.
1 . Michele Norris, interviewed by Michelle Obama for The Michelle Obama Podcast, “Protests and the Pandemic with Michele Norris,” Spotify (Aug. 5, 2020), https://open.spotify.com/episode/0ASSMnYfKKdTpsyUUPHbli.
2 . Overcoming Lawyers’ Resistance to Change, Thompson-Reuters Legal, https://legal.thomsonreuters.com/en/insights/articles/overcoming-lawyers-resistance-to-change (last visited Dec. 1, 2020).
3 . See, e.g., Lowell Brown, Texas Supreme Court Addresses Attorneys’ Tech Competence in Amended Comment to Disciplinary Rule, Tex. Bar Blog (Mar. 1, 2019), https://blog.texasbar.com/2019/03/articles/texas-supreme-court/texas-supreme-court-addresses-attorneys-tech-competence-in-amended-comment-to-disciplinary-rule/.
4 . David Freeman Engstrom & Chief Justice Bridget Mary McCormack, Q&A with Sharon Driscoll, Post-COVID Courts, SLS Blogs (July 15, 2020), https://law.stanford.edu/2020/07/15/post-covid-courts.
5 . Coronavirus and the Courts, Nat’l Ctr. for State Cts., https://www.ncsc.org/newsroom/public-health-emergency (last visited Jan. 10, 2021). For a resource linking to each state’s COVID-related measures, see Links to State Court COVID-19 Websites, Nat’l Ctr. for State Cts., https://www.ncsc.org/newsroom/public-health-emergency. For a summary as of July 29, 2020, see Nat’l Ctr. for State Cts., Coronavirus & the Courts, https://www.ncsc.org/__data/assets/pdf_file/0021/42870/Coronavirus-and-the-Courts-State-Profiles-7-29-2020.pdf (updated July 29, 2020).
6 . First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket Nos. 20-9042 & 20-007 (Tex. & Tex. Crim. App. Mar. 13, 2020), https://www.txcourts.gov/media/1446056/209042.pdf. The court also promptly issued orders providing guidance on crucial questions about the impact of COVID on standard custody orders and related family law issues. See, e.g., Second Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9043 (Tex. Mar. 17, 2020), https://sbotfam.org/wp-content/uploads/2020/03/SCOTX-Second-Emergency-Order-Regarding-the-Covid-19-03.17.20.pdf (“appl[ying] to and clarif[ying] possession schedules in Suits Affecting the Parent–Child Relationship”). The Texas State Law Library created a web page with resources about COVID and family law (among other topics). See COVID-19 & Texas Law, Custody & Child Support, Tex. State L. Libr., https://guides.sll.texas.gov/covid-19/custody-child-support (last visited Jan. 10, 2021); COVID-19 & Texas Law, Domestic Violence, Tex. State L. Libr., https://guides.sll.texas.gov/covid-19/domestic-violence (last visited Jan. 10, 2021).
7 . Before purchasing the licenses, they had 20 judges test the Zoom platform for its suitability for remote hearings and received positive feedback. David Slayton, Tex. Off. of Ct. Admin., Jury Trials During the COVID-19 Pandemic: Observations and Recommendation 5 (Aug. 28, 2020), https://www.txcourts.gov/media/1449660/jury-report-to-scotx-final.pdf. Instructions for the courts are here: Court Coronavirus Information: Zoom Information and YouTube Support, Tex. Jud. Branch, https://www.txcourts.gov/court-coronavirus-information/electronic-hearings-zoom/ (last visited Dec. 27, 2020). A training webinar (held on Mar. 22, 2020) can be viewed here: https://register.gotowebinar.com/recording/5079347202384081926. Not all courts chose to use the Zoom/YouTube combination. Harris County (Houston area) chose to post its hearings on Vimeo rather than YouTube, and some judges even used Facebook Live. Those hearings, too, can be observed by the public, and the student observers spent some time with courts using these platforms.
8 . Erika Richard & Qudsiya Naqui, Coronavirus Accelerates State Court Modernization Efforts, Pew Trusts (June 18, 2020), https://www.pewtrusts.org/en/research-and-analysis/articles/2020/06/18/coronavirus-accelerates-state-court-modernization-efforts.
9 . Slayton, supra note 7, at 5.
10 . Unless otherwise noted, the discussion of Texas court proceedings in this Article is based on this study. I need to note at the outset what this study was not about: proceedings in criminal cases. (Students did observe and report on 13 criminal hearings while watching general jurisdiction courts, but those incidental observations do not form part of the results reported in this Article.) While civil and criminal courts shared many of the same logistical challenges in going online, the added constitutional protections for criminal defendants and the impact of incarceration present many additional issues for those courts. For a reflection on online criminal courts during this same time period, see Jenia Turner, Remote Criminal Justice, 53 Tex. Tech. L. Rev. (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3699045.
11 . It is important to note, though, that in the 85 nonfamily civil cases that the students observed, there were far fewer problems with technology, far fewer self-represented litigants, and far fewer hearings involving witness testimony.
12 . The observations of this study are also similar to what has been reported in other jurisdictions, including internationally. See, e.g., Mary Ryan et al., Nuffield Fam. Just. Observatory, Remote Hearings in the Family Justice System: A Rapid Consultation (2020), https://www.nuffieldfjo.org.uk/resource/remote-hearings-rapid-consultation (reporting on a study in the UK undertaken April 14–28, 2020). They also parallel the attorney responses in an online survey of 3,744 attorneys (2,836 of whom had participated in a hearing after Mar. 30) in June of 2020. Tex. Off. of Ct. Admin., Remote/In Person Proceedings Survey 24 (June 10–18, 2020) [hereinafter OCA Survey] (on file with author).
13 . Today, those hearings are available at Texas Court Live Streams, Tex. Jud. Branch, http://streams.txcourts.gov (last visited Dec. 22, 2020). Courts with active hearings rise to the top of the list. The original website fell prey to a ransomware attack on the Texas courts. Travis Bubenik, Hackers Target Texas Courts in Ransomware Attacks, Courthouse News Serv. (May 11, 2020), https://www.courthousenews.com/hackers-target-texas-courts-in-ransomware-attack/. During the period when the replacement state site was still somewhat skeletal, the students “subscribed” to the court YouTube channels and thereby replicated the official site’s ability to list active channels first. Throughout the study, they also sought out hearings by judges who chose to use Vimeo or Facebook Live rather than YouTube.
14 . The students formed a text message group to keep each other informed about what court they were watching to avoid duplicates.
15 . It is likely that certain judges who were apt to consistently hold online hearings and who were proficient in using the Zoom technology became “go to” choices for the students because those courts were more likely to deal with more complex matters and demonstrate online best practices. This will overweight the observations somewhat toward judges whose technical skills allowed optimal use of the technology. The fact that even those judges faced certain types of problems, though, helps separate the problems themselves from questions of judicial technical competence. Note, too, that the goal of observing contested evidentiary hearings when possible skewed in the other direction—toward hearings likely to present more challenges.
16 . This percentage—65%—is higher than the percentage of family law cases in the overall civil caseload in Texas. According to the Texas Judiciary’s 2019 fiscal year report, family cases comprised 45% of the total civil caseload (not counting civil cases related to criminal matters). Off. of Ct. Admin., Annual Statistical Report: For the Texas Judiciary Fiscal Year 2019, at 8 (2019), https://www.txcourts.gov/media/1445760/fy-19-annual-statistical-report.pdf.
17 . This number only includes parties who appeared at the hearing without an attorney. Some hearings had the potential to affect persons who did not participate, either personally or through an attorney. For purposes of this Article, they are not counted as “self-represented” hearing participants.
18 . To get a better sense of the nature of the technology problems the student observers recorded, see Appendix A, which lists the students’ observations. The list includes most comments about technology-related issues but is not comprehensive in the sense that it is somewhat subjective to decide what counts as a “problem.”
19 . This improvement over time is significant. This study was still relatively early in the courts’ online experiences, and it seems likely that the problems observed will decrease in frequency and severity over time, as the parties learn to use the technology and the technology improves. For example, on June 3, one student observer commented: “The judges . . . seem to have become pretty comfortable with hearings over Zoom. It’s been some time since one of them seem[ed] confused about something with the technology. I think there are definitely some [judges who] aren’t moving into more advanced uses of Zoom, but I would say that most seem comfortable in their online courtroom” (Student 4). Conversely, a student watching some rural or limited-jurisdiction courts at about the same time noted (also on June 3), “I think it’s interesting to see how some of them seem to have just started some hearings again and they’re a little confused [but] for the most part there’s been a lot of improvement and I would say that a lot of the issues are just minor user errors instead of judicial confusion” (Student 3). Student Observer Text Message String (on file with author).
20 . As Judge Roy Ferguson, Texas 394th District Court, noted on Twitter: “After 3 months of Zoom hearings, I can state that 90+% of the technology glitches in virtual hearings are lawyers forgetting to unmute themselves. In a one-hour proceeding, I say, ‘Counsel, you are still muted,’ probably 20 times. . . .” Judge Roy Ferguson (@JudgeFergusonTX, Twitter (June 4, 2020, 12:23 p.m.), https://twitter.com/JudgeFergusonTX/status/1268594290005020672.
21 . Judge Emily Miskel, Zoom Remote Training CLE, YouTube (Mar. 27, 2020), https://www.youtube.com/watch?v=ayaENNMKSqs&feature=youtu.be.
22 . See, e.g., Zooming into Remote Law Practice: Judge Emily Miskel, Smith L. Grp. (Mar. 31, 2020), https://appealsplus.com/zooming-into-remote-law-practice-judge-emily-miskel/; Nat’l Ctr. for State Cts. et al., Lights, Cameras, Motion!, Vimeo (Apr. 7, 2020), https://vimeo.com/405221328.
23 . See, e.g., Zooming into Remote Law Practice: Judge Emily Miskel, supra note 22; Nat’l Ctr. for State Cts. et al., supra note 22.
24 . This Article both cites individual student reports (by student identifier and date) and draws conclusions from the set of reports as a whole. It also cites the student observers’ final reflections on what they learned and the substantive content of the students’ daily text message strings. All of these documents, as well as spreadsheets compiling the contents of the students’ individual reports, are on file with the author.
25 . See Tex. Fam. Code Ann. § 102.003(a) (West 2020) (conferring standing on parents and certain other identified private parties); id. § 161.001(b) (listing grounds for “termination of the parent-child relationship”). The substantive family law that underlay the proceedings that the students observed are beyond the scope of this Article. Note, however, that all of the proceedings were conducted under Texas law. Although many states have different laws governing family law practice, the observations from the study about the quality of the proceedings and their impact on access to justice are widely applicable.
26 . The U.S. Supreme Court has not required appointment of counsel in child welfare proceedings, even when they involve termination of parental rights. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981). Texas law requires that indigent parents be appointed an attorney ad litem when the State initiates a proceeding seeking termination of parental rights or appointment of a conservator for the child. Tex. Fam. Code Ann. §§ 107.013, 161.003(b) (West 2020). However, appointment of counsel for parents is not mandatory in other family proceedings involving children, including private proceedings seeking termination or relinquishment of parental rights. See id. § 107.021(a) (providing that the court “may appoint” an attorney ad litem “[i]n a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child”) (emphasis added). For an overview concerning the right to counsel for parents in family law cases under Texas law, see The Right to a Lawyer in Family Law Cases, TexasLawHelp, https://texaslawhelp.org/article/right-lawyer-family-law-cases#:~:text=Texas%20law%20states%20that%20indigent,enforce%20visitation%20or%20child%20support (last visited Jan. 31, 2021); Standing Comm. on Legal Aid & Indigent Defendants, Am. Bar Ass’n, Directory of Law Governing Appointment of Counsel in State Civil Proceedings: Texas 6–12 (2016), https://texaslawhelp.org/sites/default/files/ls_sclaid_judges_manual_tx_0.pdf. For discussion of different state approaches to the provision of counsel in child welfare proceedings, see Vivek S. Sankaran, Moving Beyond Lassiter: The Need for a Federal Statutory Right to Counsel for Parents in Child Welfare Cases, 44 J. Legis. 1 (2017).
27 . Student 3, May 22, 2020.
28 . Student 5, June 2, 2020.
29 . Student 5, May 12, 2020. The hearing described in the text of this section lasted 105 minutes.
30 . Student 5, May 21, 2020.
31 . One of the things that Zoom makes possible, if set up in advance, is a kind of simultaneous interpretation function, so that “[w]hen the meeting or webinar starts, the host can start the interpretation feature, which will allow the interpreters to provide their own audio channels for the language they are translating to. Attendees can then select the audio channel to hear the translated audio in their language of choice, as well as the option to mute the original audio instead of hearing it in a lower volume with their chosen language.” See Language Interpretation in Meetings and Webinars, Zoom Help Ctr., https://support.zoom.us/hc/en-us/articles/360034919791-Language-interpretation-in-meetings-and-webinars (last visited Jan. 24, 2021). This function must be set up in advance, and so when judges failed to do so, it created additional problems.
32 . Student 3, June 4, 2020.
33 . See, for example, Judge Ferguson’s 394th District Court Virtual Hearing Zoom Protocols and the same court’s Zoom Admonishments recited at the beginning of contested Zoom hearings (on file with author).
34 . Student 1, June 5, 2020.
35 . Multiple interviewees noted that judges dealt with extremely disruptive and abusive parties by muting them, thereby allowing the remaining participants to be heard (including a case in which, at a prior hearing, the disruptive party had to be restrained by three bailiffs). See, e.g., Email from Professor Natalie Nanasi to author (Sept. 24, 2020, 6:44 p.m.) (on file with author).
36 . As one student reported:
Most courtrooms finally understood the importance of either muting everyone themselves or giving directions to everyone to mute themselves. This helped tremendously. The judges needed to exhibit confidence in the technology and they eventually got to that point overall. . . . In the early observations I would hear judges say things like, “I’m not sure what’s going on but I can’t hear you; can you hear me?” . . . [L]ater on it was more common to hear, “Mr. Smith, the court is having trouble hearing you. Please log out of the Zoom session and dial back in. We will wait for you.”
Student 5, Final Report (2020) (on file with author).
37 . Student 1, May 12, 2020.
38 . Student 3, May 26, 2020. See also this observation: “[The judge] quickly dealt with the small technical issue very effectively by reaching out to [the participant] quickly and walking her through how to connect differently.” Student 3, May 27, 2020.
39 . See Judge Emily Miskel, supra note 21.
40 . Student 1, May 15 & May 29, 2020 (signs); Student 2, May 13, 2020 (hand raise).
41 . “By the end of our observations, most judges seemed very confident using waiting rooms—bringing everyone in first thing in the morning and then telling all parties the order that they planned to call the cases in, then moving individual parties back into the waiting room until their case[s] w[ere] called.” Student 5, Final Report, supra note 36.
42 . See, e.g., Email & Interview with Michael Ellis, The Bassett Firm (Apr. 27, 2020) (on file with author).
43 . Enabling Breakout Rooms, Zoom Help Ctr., https://support.zoom.us/hc/en-us/articles/206476093-Enabling-breakout-rooms (last visited Dec. 24, 2020).
44 . See, e.g., Student 1, May 22, 2020 (noting that the judge provided “a private breakout room so [the mother] and her attorney could break off and discuss an agreement”).
45 . One logistical limit to breakout rooms is that you cannot close less than all of them. Judges using the breakout room feature tended to create a number of rooms at the start of the day and then moved people in and out of them as needed.
46 . Student 5, May 13, 2020.
47 . The National Center for State Courts has produced a bench guide for judges that highlights ways to communicate procedural fairness in the online environment. See Nat’l Ctr. for State Cts., Conducting Fair and Just Remote Hearings: A Bench Guide for Judges (2020), https://www.ncsc.org/__data/assets/pdf_file/0025/51784/Remote-Hearing-Bench-Guide.pdf.
48 . Student 6, June 5, 2020; Student 3, May 26, 2020.
49 . Judge Dennise Garcia (@kdgarcia), Twitter (May 14, 2020, 9:48 PM), https://twitter.com/kdgarcia/status/1261123727410020355.
50 . Student 1, May 20, 2020.
51 . Student 3, June 5, 2020.
52 . Student 1, May 22, 2020. The same was true in this observation: “Judge was very patient with the pro se party, often explaining things to him.” Student 4, May 24, 2020. This is consistent with the guidance provided by the Texas Access to Justice Commission. Tex. Access to Just. Comm’n, Best Practices for Courts in Zoom Hearings Involving Self Represented Litigants, https://www.txcourts.gov/media/1446335/zoomsrlbestpractices.pdf (2020).
53 . Celia Kitzinger, Remote Justice: A Family Perspective, Transparency Project (Mar. 29, 2020), http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/.
54 . Nageena Khalique & Sophia Roper, Skype in the Court of Protection: The Courts in the Time of Coronavirus, Loc. Gov’t Law. (Mar. 27, 2020), https://www.localgovernmentlawyer.co.uk/adult-social-care/307-adult-care-features/43223-skype-in-the-court-of-protection-the-courts-in-the-time-of-coronavirus.
55 . Kitzinger, supra note 53. This hearing was one of the first online, involved multiple lawyers and witnesses over a period of three days, and involved a decision that would have been difficult in any case. The Skype medium posed issues that Zoom might not, such as the parties and witnesses not being able to see the judge except when he spoke. Khalique & Roper, supra note 54. Ms. Kitzinger has since written about an online hearing where the judge did a better job of considering the perspective of the person who would be affected by the court’s decision (although that person was not present for the hearing). As she wrote, “[m]y observation of this remote hearing has caused me to reflect further on the extent to which ‘lack of empathy’ is due to the medium through which the hearing is conducted, and how much can be attributed instead to different judicial styles and practices, irrespective of the medium.” Celia Kitzinger, When Remote Justice Works, Transparency Project (May 4, 2020), http://www.transparencyproject.org.uk/when-remote-justice-works/.
56 . Khalique & Roper, supra note 54 (emphasis in original).
57 . This is another reason for the judge to use the Zoom waiting room and breakout room features so that only necessary parties to the current hearing are included in the “meeting.” Student observers noted times when all of the lawyers for all of the day’s hearings were on screen, which also adds to the confusion. For example: “The only thing that was distracting from the hearing was the people waiting in the room for the next hearing.” Student 1, May 14, 2020. This choice also makes it difficult for multiple people involved in the same hearing to be sure that everyone is “there,” as the large numbers spread the participant thumbnails over multiple screens.
58 . Student 1, May 12, 2020.
59 . Neither in person nor on Zoom is it effective to make dramatic faces in response to opposing counsel or witnesses, yet attorney bickering and eye-rolling were noted in the online hearings. One wonders whether the attorneys would have done the same in person. This phenomenon is apparently not confined to the United States. One United Kingdom observer noted this behavior: “Tempers are frayed in court . . . . Sharp tones and harsh words. Counsel responds to eye roll from participating solicitor saying ‘your instructing solicitor is deeply rude.’” Celia Kitzinger (@KitzingerCelia), Twitter (Sept. 7, 2020, 9:52 AM), https://twitter.com/KitzingerCelia/status/1302967921656954881.
60 . Appendix A, which compiles the student observers’ reports on technology issues, provides illustrative examples of the kinds of problems the lawyers had.
61 . Lawyers did not always make good choices for their virtual courtroom attire. One minor example: A male lawyer was described as “in a polo, looking more like a dad watching a weekend football game rather than an attorney at a hearing.” Student 3, May 13, 2020.
62 . Cf. Lynette Mueller, Five Tips for Looking Great in Remote Depositions, The JCR (Apr. 27, 2020), https://www.thejcr.com/2020/04/27/five-tips-for-looking-great-in-remote-depositions/ (advice from a court reporter).
63 . Student 2, Final Reflection (2020) (on file with author).
64 . Student 1, May 14, 2020.
65 . The Texas Office of Court Administration provided general guidance to the courts, see Court Coronavirus Information, supra note 7, but attorneys have suggested that uniform state standards would help lessen the burden of learning each court’s local rules. See, e.g., OCA Survey, supra note 12, at 92, 93.
66 . Good advice regarding appellate argument can also be helpful at the trial level. Consider this Twitter thread written by Raffi Malkonian. Raffi Malkonian (@RMFifthCircuit), Thread Reader (Sept. 1, 2020), https://threadreaderapp.com/thread/1300980516271919105.html.
67 . Judges repeatedly recommend using headsets to improve your own audio and your ability to hear others. See, e.g., Judge Dennise Garcia (@kdgarcia), Twitter (Sept. 3, 2020, 10:23 AM), https://twitter.com/kdgarcia/status/1301541245756542977.
68 . This also affects the questioning of witnesses. As one student observer noted: “Do not talk over your own witness!” Student 5, May 20, 2020.
69 . Student 4, Final Report (2020) (on file with author).
70 . Two of the judge-presenters at the State Bar of Texas Family Law Section webinar had an interesting exchange related to this practice: What if a party wants to “hold back” an exhibit and use it to surprise a witness? One judge suggested sending that document separately to the court clerk, for placement in an access-restricted Dropbox folder; the other judge suggested that the court would not participate in ambushing opposing witnesses and that advance disclosure of those exhibits could promote settlement. Technologically, it’s feasible. The policy issue is a separate question.
71 . See Wendy Angus-Anderson, Note, Authenticity and Admissibility of Social Media Website Printouts, 14 Duke L. & Tech. L. Rev. 33 (2016).
72 . Student 3, May 29, 2020 (hearing on temporary custody orders).
74 . Student 5, May 27, 2020.
75 . Zoom Interview with Chris Konneker, Warren & Migliaccio (Apr. 28, 2020).
76 . Id. Some lawyers use two devices to connect to hearings for the sake of efficiency; that makes it easier to simultaneously appear personally in the little Zoom square and show documents through screen sharing.
77 . Student 1, June 11, 2020. A similar observation also shows a lawyer technology failure: “[t]he only issue [was that] the third time screen share was used [the father’s lawyer] simply couldn’t open his file due to his level of tech skills.” Student 6, May 14, 2020.
78 . Zoom Interview with Judge Dennise Garcia (Apr. 22, 2020).
79 . This discussion is based on the author’s review of multiple student observation reports.
80 . Student 2, May 13, 2020.
81 . OCA Survey, supra note 12, at 24. This poll was not limited to family law cases, but 21% of participants listed family or juvenile law as their primary practice area; and more than 25% of respondents to a question about the case type for their most recent hearing indicated that the subject matter related to family law. Id. at 22, 32–33.
82 . Id. at 65.
83 . Id. at 53.
84 . Id. at 63.
85 . Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc’y Rev. 95, 97 (1974).
86 . Hon. Mark Juhas, Working with Pro Se Litigants: A Guide for Family Court Bench Officers 2 (Ass’n of Fam. & Conciliation Cts. 2017), https://www.afccnet.org/Portals/0/Guide%20for%20Judges%20SRLs.pdf.
87 . Richard W. Painter, Pro Se Litigation in Times of Financial Hardship—A Legal Crisis and Its Solutions, 45 Fam. L.Q. 45, 45 (2011).
88 . Id. at 46. The judges also reported that pro se litigation presented challenges for the court itself. “Ninety percent of those judges who stated courts were negatively impacted said court procedures were slowed. Seventy-one percent of judges said that pro se litigants use more staff time for assistance. Fifty-six percent cited negative impact on the court from lack of a fair presentation of relevant facts, while 42% of the judges observed that the court may compromise its impartiality to avoid injustice toward unrepresented parties.” Id.
89 . “The idea of the ‘digital divide’ refers to the growing gap between the underprivileged members of society, especially the poor, rural, elderly, and handicapped portion of the population who do not have access to computers or the internet; and the wealthy, middle-class, and young Americans living in urban and suburban areas who have access.” Plugged In Project, Digital Divide, https://cs.stanford.edu/people/eroberts/cs181/projects/digital-divide/start.html (last visited Dec. 27, 2020).
90 . Angela Morris, Now Trending: “Zoom Kiosks” to Breach Digital Divide Between Public and Remote Courts, Tex. Law. (May 20, 2020), https://www.law.com/texaslawyer/2020/05/29/now-trending-zoom-kiosks-to-breach-digital-divide-between-public-and-remote-courts/.
91 . Id.
92 . Summary of student observation reports (on file with author).
93 . Nat’l Ctr. for State Cts., Texas Juror Poll, figs. 13 & 14 (June 2020), http://litigationsection.com/uploads/NCSC%20Texas%20Juror%20Poll%20Results%20062320.pdf.
94 . Most had plans with either unlimited data or unlimited minutes or both, although note that 23% of those earning less than $50,000 a year had neither feature. Id.
95 . E-mail from Kathleen LaValle to author (Sept. 8, 2020) (on file with author).
96 . Zoom Interview with Judge Roy Ferguson, Tex. 394th Dist. Ct. (Sept. 9, 2020).
97 . For an illustrative list of party and witness locations, see Appendix B.
98 . Id.
99 . The discussion in this paragraph is based on the author’s review of multiple student observation reports.
100 . Student 6, June 3, 2020.
101 . These observations have been excerpted from the students’ reports, with light editing for clarity.
102 . Student 1, May 26, 2020.
103 . Student 6, May 20, 2020.
104 . Student 1, May 13, 2020.
105 . Student 5, June 2, 2020.
106 . See Sarah Lekach, Zoom Is Different on Your Phone, So Here’s When to Use It, Mashable (Apr. 6, 2020), https://mashable.com/article/zoom-mobile-desktop-video-calls/.
107 . See id.
108 . See id.
109 . See, e.g., Student 6, June 11, 2020.
110 . Zoom Interview with Judge Roy Ferguson, supra note 96.
111 . See, e.g., Student 4, May 12, 2020 (“[The father] called in by phone (no video) . . . and it was not a great connection. You could hear him, but it was garbled at times. [The] [j]udge had to ask [the father] to repeat himself.”).
112 . See, e.g., Student 3, May 29, 2020 (“Throughout the entirety of her testimony she was having connection issues. Within the first 30 minutes the court took two small breaks in order to allow her to move to a different place in her apartment to see if she could get a stronger internet connection. When that still didn’t fix the issue the court took another break to let her restart her router and modem. This worked for a little while, but for the rest of the hearing she occasionally missed questions from the attorneys, or the court reporter would have trouble getting down her answers.”).
113 . These observations have been excerpted from the students’ reports, with light editing for clarity.
114 . Texas law requires that indigent parents be appointed an attorney ad litem when the state initiates a proceeding seeking termination of parental rights or appointment of a conservator for the child, but appointment is not mandatory in custody proceedings or privately-initiated termination proceedings. Tex. Fam. Code Ann. §§ 107.013, 107.021 (West 2020); see supra note 26.
115 . Student 1, May 13, 2020. It should be noted that some problems (in particular, judges, lawyers, and parties having to juggle work and child care while appearing from home) may be more pandemic-related than technology-driven, and can be expected to dissipate as judges and attorneys are able to go back to offices and children go back to in-person school and daycare.
116 . Student 1, May 12, 2020.
117 . Student 1, June 5, 2020. Similarly, in another hearing, “[the husband] . . . mentioned living with a friend during the divorce. That friend was talking to the husband out of frame. The judge asked the husband to identify that person and to ask him to leave.” Student 2, May 13, 2020.
118 . Student 6, June 3, 2020. Another report notes that “[the father] continued to move around while the CPS caseworker was talking, which was distracting. At the end when the [j]udge was talking to him about the current plan, he walked outside and started smoking a cigarette.” Student 1, May 13, 2020.
119 . Student 1, May 28, 2020. Others acted to avoid this problem: “[the father] and [his girlfriend] were in the same house, so [the] girlfriend went outside the home while she was in the Zoom waiting room.” Student 5, June 3, 2020.
120 . See Court Coronavirus Information, supra note 7 (“Judges should admonish participants and viewers that recording is not permitted and can be enforced with contempt.”). For example, Harris County Courts provide this warning: “NO PERSON, OTHER THAN THE COURT REPORTER, MAY RECORD A COURT PROCEEDING WITHOUT THE COURT’S PERMISSION. THIS PROHIBITION APPLIES TO ALL PERSONS, INCLUDING MEMBERS OF THE PUBLIC VIEWING COURT PROCEEDINGS ON ANY COURT’S YOUTUBE CHANNEL AND TO PERSONS WITH THE ABILITY TO RECORD ANY ZOOM OR OTHER VIRTUAL COURT PROCEEDING. ANY PERSON FOUND TO BE IN VIOLATION OF THIS ORDER FACES CONTEMPT PROCEEDINGS, INCLUDING A FINE OF UP TO $500 AND A SENTENCE OF CONFINEMENT FOR UP TO SIX (6) MONTHS IN JAIL FOR EACH ACT OF CONTEMPT OF COURT.” 338th Criminal Court, Dist. Cts. of Harris Cnty., https://www.justex.net/Courts/Criminal/CriminalCourt.aspx?crt=46 (last visited Dec. 27, 2020) (capital letters in original).
121 . See Court Coronavirus Information, supra note 7.
122 . See How to Create a YouTube Channel, Tex. Jud. Branch, https://txcourts.gov/media/1446204/setting-up-youtube.pdf.
123 . Student 6, May 14, 2020.
124 . Talking about Michigan courts, Chief Justice Bridget Mary McCormack indicated that the children who were interviewed felt more comfortable in this context than at the courthouse. Bridget Mary McCormack, The Spanish Flu to Covid-19: How This Pandemic Is Pushing Courts to Modernize, Legal Talk Network (Aug. 5, 2020), https://legaltalknetwork.com/podcasts/law-technology-now/2020/08/the-spanish-flu-to-covid-19-how-this-pandemic-is-pushing-courts-to-modernize/ (“[A]nother category of litigant who has come alive on the Zoom platform are kids. I don’t know if you’ve heard this, but we hear over and over again from judges who are presiding over cases where there are kids who are witnesses or who are litigants and they are far more comfortable talking on an online platform.”). See also Allie Reed & Madison Alder, Virtual Hearings Put Children, Abuse Victims at Ease in Court, Bloomberg L. (July 23, 2020), https://news.bloomberglaw.com/us-law-week/virtual-hearings-put-children-abuse-victims-at-ease-in-court.
125 . Student 1, June 2, 2020.
126 . Student 3, May 20, 2020.
127 . Judge Dennise Garcia (@kdgarcia, Twitter (Sept. 1, 2020, 4:58 PM), https://twitter.com/kdgarcia/status/1300915871565721601.
128 . See, e.g., Lessons Learned from Online Court Proceedings, Tex. App. Law Podcast, https://appealsplus.com/lessons-learned-from-online-court-proceedings-beth-thornburg/ (Nov. 26, 2020).
129 . Zoom Interview with Judge Dennise Garcia, supra note 78.
130 . OCA Survey, supra note 12, at 437 (“To invoke The Rule during our upcoming trial, the judge suggested that the witnesses hold their phone or computer camera up and spend their testimony time spinning in the room to show that no one was in the room. [The judge] stood up and showed us how to do the ‘spin’ . . . really. . . .”).
131 . Student 1, May 28, 2020.
132 . A lawyer commenting on his participation in a summary judgment proceeding in a civil case made a similar observation. He said, “I found the Zoom hearing to be very intimate. The faces are really close.” Interview with Ray Khirallah, Partner, Hamilton Wingo, LLP (Apr. 27, 2020).
133 . It should be noted, though, that it is often difficult to be sure that one is making eye contact on Zoom even while trying, as it is unclear how to look at the camera so that watchers of the Zoom stream perceive the speaker as looking at them.
134 . Zoom Interview with Judge Roy Ferguson, supra note 96.
135 . Susan A. Bandes & Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275 (2020).
136 . Julia Simon-Kerr, Unmasking Demeanor, 88 Geo. Wash. L. Rev. Arguendo 158, 161 (2020), https://www.gwlr.org/wp-content/uploads/2020/09/88-Geo.-Wash.-L.-Rev.-Arguendo-158.pdf; see also Amanda Carlin, The Courtroom as White Space: Racial Performance as Noncredibility, 63 UCLA L. Rev. 450, 476–77 (2016) (describing the emphasis on demeanor as a mechanism for “exclud[ing] nonwhite racial performance in the courtroom”); Joseph W. Rand, The Demeanor Gap: Race, Lie Detection, and the Jury, 33 Conn. L. Rev. 1, 42, 53–54 (2000); Regina A. Schuller et al., Judgments of Sexual Assault: The Impact of Complainant Emotional Demeanor, Gender, and Victim Stereotypes, 13 New Crim. L. Rev. 759, 768 (2010).
137 . See Turner, supra note 10, at 16–27.
138 . See id. at 16–27. Some of the studies expressing concern include Shari Seidman Diamond et al., Efficiency and Cost: The Impact of Videoconferenced Proceedings on Bail Decisions, 100 J. Crim. L. & Criminology 869, 900 (2010) (explaining that video detracts from fact-finders’ abilities to assess nonverbal cues); Robin Davis et al., ICF Int’l, Research on Videoconferencing at Post-Arraignment Release Hearings: Phase I Final Report 5–6 (May 29, 2015), https://www.ncjrs.gov/pdffiles1/nij/grants/248902.pdf (reporting that conferencing technology can actually filter out voice frequencies associated with human emotion).
139 . For uncontested family law matters, the TexasLawHelp website provides information about how to set an uncontested final hearing. How to Set an Uncontested Final Hearing(Family Law), TexasLawHelp, https://texaslawhelp.org/article/how-set-uncontested-final-hearing-family-law (last visited Dec. 28, 2020).
140 . In this context, “prove up” refers to a hearing in which evidence is offered to establish something for the record, although it is uncontested. “Prove up” hearings might be used, for example, to offer evidence in support of an agreed property settlement. Indeed, in some cases the hearings are so routine and uneventful that the courts might consider whether any kind of hearing is needed. Interview with Judge Emily Miskel, Tex. 470th Dist. Ct. (Apr. 24, 2020) (hearings no longer required for agreed divorce prove-ups).
141 . As early as June 3, one student observer noted, “I definitely think that most of the judges that I watch have gotten pretty good at using Zoom and its features. Most of the tech[nological] problems that I see now aren’t the participants not knowing how to use a feature on Zoom, but rather microphone/audio quality, talking on mute, simple things like that.” Another commented, “The judges that I have watched seemed to have become pretty comfortable with hearings over Zoom. It’s been some time since one of them seemed confused about something with the technology. I think there are definitely some that aren’t moving into more advanced uses of Zoom, but I would say that most seem comfortable in their online courtroom.” Similarly, a student observer wrote, “I think lawyers have also gotten better with Zoom. A lot less of the ‘I hate technology’ and ‘I’m too old fashioned for this technology’ comments.” Student Observer Text Message String (June 3, 2020) (on file with author).
142 . Jason Trahan, Dallas ISD to Purchase 12,000 WiFi Hotspots to Help Students Continue Distance Learning During COVID-19 Pandemic, WFAA (Mar. 26, 2020, 9:40 PM), https://www.wfaa.com/article/news/education/dallas-isd-to-purchase-12000-wifi-hotspots-to-help-students-continue-distance-learning-during-covid-19-pandemic/287-9efb66d2-6d96-4a35-b281-8f1ebaf44cab; Colin Rhinesmith & Susan Kennedy, Growing Healthy Digital Ecosystems During COVID-19 and Beyond (Nov. 2020), https://www.benton.org/sites/default/files/growinghealthy_ecosystems.pdf.
143 . Wi-Fi on Wheels: How—and Why—Libraries Are Bringing Their Services into Communities, Inst. of Museum & Libr. Servs. (May 29, 2020), https://www.imls.gov/blog/2020/05/wi-fi-wheels-how-and-why-libraries-are-bringing-their-services-communities.
144 . Several respondents to the OCA survey noted that the courthouse Wi-Fi signal was weak, which created problems when the judge could not adequately participate on Zoom. See, e.g., OCA Survey, supra note 12, at 119, 319, 320, 321, 329, 357, 385.
145 . In Texas, repeated Supreme Court Orders have provided that in-person proceedings must comply with “the Guidance for All Court Proceedings During COVID-19 Pandemic (‘Guidance’) issued by the Office of Court Administration. . . . Prior to holding any in-person proceedings, a court must submit an operating plan that is consistent with the requirements set forth in the Guidance.” E.g., Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9135 (Tex. Nov. 11, 2020), https://www.txcourts.gov/media/1450050/209135.pdf. The Guidance document includes detailed requirements for operating plans. Tex. Jud. Branch, Off. of Ct. Admin., Guidance for All Court Proceedings During COVID-19 Pandemic, https://www.txcourts.gov/media/1450221/guidance-for-all-court-proceedings-during-covid-19-pandemic.pdf (effective Oct. 1, 2020; updated Dec. 31, 2020).
146 . This student observation typifies this kind of situation: “This didn’t seem like it was BAD over Zoom, but because of the amount of people involved in this hearing, I think it might have gone more smoothly in person. Lots of parties on this meeting. This case involved the parties and their attorneys, CPS, [Office of the Attorney General], an interpreter, and others. Plus, with the argumentative personalities of these attorneys, I think the judge could have reined them in better in person.” Student 5, May 21, 2020.
147 . Consider this student observation: “This hearing was hectic as soon as I started watching it. Parties were speaking over one another, and someone was raising their voice to try to be heard. This was [a] pretty complex case with multiple witnesses. This is one of the hearings that I would say is probably better off occurring in the courthouse. There were technology challenges and a lot of parties that had to speak. I believe order would have been better in person.” Student 5, June 3, 2020. It is important to note, though, that self-represented status alone did not cause problems. A number of hearings involving self-represented litigants went smoothly. In addition, in some cases, the online separation of hostile parties may have been an advantage.
148 . See, e.g., Susan Beaumont, 10 Questions to Ask Now, Congregational Consulting Grp. (June 1, 2020), https://www.congregationalconsulting.org/10-questions-to-ask-now/; John Thornburg, Tex. Methodist Found., Life After COVID-19: The Crucial Need for Discernment When We Return (2020), https://tmf-fdn.org/assets/images/Leadership-Ministry/Life-After-COVID-19.pdf; Ishwar K. Puri, 5 Ways University Education Is Being Reimagined in Response to COVID-19, The Conversation (Aug. 25, 2020), https://theconversation.com/5-ways-university-education-is-being-reimagined-in-response-to-covid-19-144052.
149 . William Faulkner, Requiem for a Nun 23 (1951).
150 . McCormack, supra note 124.
151 . Salt Lake City Justice Court, @saltlakejustice, Twitter (July 17, 2020 9:59 AM), https://twitter.com/saltlakejustice/status/1284140610266386435 (“We’ve learned that people really like booking their own hearings! Almost all of the 500ish doodle slots we put up for the next four weeks are full, so we are working hard to increase our capacity. We have seen a few FTAs on arraignments, but hearings attendance is still perfect.”).
152 . Bridget Mary McCormack, Leveraging Technology for Long-Term Change in the Face of COVID-19, The Hill (June 22, 2020), https://thehill.com/opinion/technology/503919-leveraging-technology-for-long-term-change-in-the-face-of-covid-19.
154 . See Jessica Dixon Weaver, Overstepping Ethical Boundaries? Limitations on State Efforts to Provide Access to Justice in Family Courts, 82 Fordham L. Rev. 2705, 2710–15 (2014) (noting how the complexities of family law require competent legal representation).