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June 11, 2024 Feature

It’s Settled: How Technology Has Helped Magistrate Judges Be More Efficient and Effective

Judge Robert M. Spector

For me, it was March 13, 2020, the day everything changed, definitively. Though there were other days earlier in the week and in the month, and even in 2020, when the possibility of a pandemic and the words “COVID” or “coronavirus” began to reverberate, that day in mid-March was when everything started to become clear. Schools were closing. Students were being sent home from college. Employees were being told not to report to work. The NBA had canceled its season. Some towns, cities, and even states were instructing their residents to shelter at home.

But I was on criminal duty in New Haven, Connecticut, for the month of March, and that particular Friday had a full docket, as did the remaining weeks in March. It was the longest 17 days of my relatively short tenure as a magistrate judge. I had never heard of Zoom. We were not wearing masks. We had never heard of social distancing or cohorting; we did not understand the importance of airflow. I recall avoiding the elevator and walking in the center of the stairwell so that I would not touch anything. We used the largest courtroom, and we tried to work through the initial presentments, arraignments, and bond hearings without really understanding that a condition like home detention was likely impractical both because everyone in the state was on home detention and because, at least in March 2020, it was not safe for probation officers to install the monitoring equipment.

On the civil side, we moved just about every hearing and conference to the telephone. I recall one settlement conference in April 2020 that took over eight hours. I struggled to talk separately with each party, losing the connection, trying to coordinate numerous callbacks, and struggling to be effective as a voice on the phone.

At the time, I considered myself tech-savvy. As a practitioner, I had often relied on a tablet and tried to avoid bringing paper files and law books to the courtroom. When I became a magistrate judge in 2018, I decided to take things one step further and went fully paperless by removing all of the filing cabinets from my chambers and relying solely on electronic files. But I still signed paper documents, never took an agent’s oath over the phone, conducted almost every proceeding in the courtroom, and only used the telephone for civil conferences not requiring a court hearing. The pandemic changed everything. And some of those changes have significantly improved almost every aspect of our jobs, particularly for settlement conferences, discovery hearings, and criminal duties.

Settlement Conferences in the Zoom Era Can Be More Productive

In Connecticut, the magistrate judges started using Zoom to conduct settlement conferences in May 2020. At first, we were unsure. It is hard for me to admit that I was probably one of the most skeptical of the magistrate judge group. I was not convinced that I would be able to manage the technology. We had to learn how to create Zoom meetings, how to keep them confidential, whether to use a “waiting room” feature, how to create and manage “breakout rooms,” and, most importantly, the basic etiquette of appearing via Zoom so the settlement judge and the parties were not seeing things they should not see, like the family cat, an underdressed relative, or the detritus of a basement storage room. This took time and practice. Fortunately for us, during those first few months of the pandemic, one of the few aspects of litigation that seemed undeterred and, indeed, thriving was the settlement conference. We were conducting three or four each week. And almost four years later, for reasons completely unrelated to COVID, we continue to use Zoom for settlement conferences.

First, affording parties in a civil suit the ability to appear by video for settlement undoubtedly saves them money. Insurance adjusters and out-of-state attorneys are not traveling from Arkansas, California, Florida, or their various other locations to spend the day in New Haven, Connecticut. Plaintiffs often can avoid taking full days off work to come to the courthouse for the conference. The savings in travel costs can contribute to the amount of money available for settlement, which can be especially important in employment cases, in which backpay may be quite limited and litigation expenses can drive a defendant’s desire for an early settlement.

Second, because attorneys and their clients do not have to coordinate travel, it is often possible to schedule a settlement conference within a few weeks of the settlement referral rather than having to wait two months. Prior to using Zoom, attorneys regularly told me that the soonest they and their clients could be present for a conference was a few months away. Until a conference actually occurred, valuable time and money withered away as the discovery deadline approached. Now, with the Zoom advantage, parties are willing to come in right away, which often increases the chances of settlement. These referrals for settlement almost always come because the parties request them. So, scheduling a conference within a very short time after their request and while they are still focused on the case can be a huge help.

Third, though not true in every case, I find I am able to tap into a higher level of authority through Zoom. When joining a conference is as easy as clicking a button versus stepping on an airplane, the individual decision-makers within a company can and do join, and the chances of settlement increase. In cases where I am running into arbitrary boundaries and a lack of authority, I can and do insist that those with that higher level of authority join the conference. In cases against cities and towns, I now regularly see mayors, school board chairs, and police chiefs participating. In cases against multinational corporations, I see executives from other countries and time zones joining. I vividly recall one case that settled on a Friday night after more than 10 hours together. As we were ending the conference, I commented that it was after 8:00 pm and we all needed to start our weekend. The owner of one of the companies told me that he was in Saudi Arabia, so it was already 4:00 am on Saturday in his part of the world.

Fourth, I find I am more effective and efficient when conducting settlement conferences via Zoom. On Zoom in a settlement conference, I can instantaneously move from one breakout room to another, meeting with each side separately, while, at the same time, taking detailed notes on my computer without breaking eye contact. During in-person conferences, rarely am I able to take contemporaneous notes, or at least take them well, and I am constantly walking back and forth to conference rooms, stopping in my chambers to catch up on my notes or to check in on some other civil or criminal matter waiting for me. And I have noticed a difference. In a three-hour Zoom conference, we tend to accomplish more than we do in a three-hour in-person conference. In that time, over Zoom, I may see more than six or seven moves from each side as we shift from the entirely unreasonable starting figures to the number that will settle the case. In an in-person conference, I may see only half that number of moves in the same timeframe. Zoom also affords me the ability to give litigants meaningful breaks, which is harder in the courthouse, as they are limited to the handful of coffee shops within a four-minute walk. Someone who is upset might get more of a respite out of a walk outside of their home or office rather than within the halls of the courthouse.

And finally, there are some very practical and mundane advantages to video settlement conferences. We are not taking up valuable space in the courthouse by reserving courtrooms and conference rooms for litigants and their attorneys. We are not being asked to vacate the courthouse at a specific time because litigants do not need to worry that the front doors of the courthouse tend to close at 6:00 pm. We are not concerned about taking a lunch break, as participants on Zoom typically find a way to eat, drink coffee, and even get other work done during the conference. Though I certainly think some cases demand and benefit from an in-person conference, I have also found more recently that when litigants come to the courthouse for a conference, they seem more ready for a fight, and we waste quite a bit of time patiently waiting while they yell and demand and insist the other side is as wrong as any party could ever be.

Videoconferences Convert Discovery Disputes to Supervised Meet and Confers

When I first started as a magistrate judge, I had two strategies for dealing with discovery disputes. The first was to get the parties on the phone for a telephone conference to try to help work out the dispute quickly with no additional briefing and little fanfare. If that did not work, I would move to the second, which was to have an in-court proceeding, full briefing, and an on-the-record oral argument that was usually followed by a written ruling of varying length resolving the dispute.

This approach was not very effective. During the phone calls, it was difficult to follow who was talking, who they represented, and what they were saying. On some comical occasions, when I had attorneys on opposing sides with the same last name (it happened more than once, believe it or not), the call felt more like a Saturday Night Live skit than an actual court conference. During the court appearances, any attempts at finding a middle ground to solve the dispute had long since passed, and the lawyers, sensing a captive audience, typically pushed more extreme positions, especially if they brought their clients to court. The process sometimes led to lengthy and tiresome rulings from me, which sought to resolve the numerous routine discovery objections raised by both sides.

The use of videoconferencing for discovery disputes has really changed the landscape significantly and made me far more effective in addressing discovery disputes. Being able to see and hear clearly the lawyers as they advocate their positions is an obvious improvement over the telephone. Yet, we retain the convenience and cost-saving advantages of allowing parties and their clients to participate without traveling to the courthouse. The conferences are on the record, which adds just enough formality and responsibility to avoid frivolous arguments and clearly unreasonable positions. We also can bring over some of the settlement conference tools by taking a recess and placing attorneys in virtual conference rooms either so they can continue to meet and confer with each other to resolve some last sticking point or so they can reevaluate their positions by meeting privately with their co-counsel and clients.

Almost without exception, these Zoom discovery conferences result in faster decisions that typically reflect a compromise that evaded the attorneys in their supposed meet-and-confer meetings that occurred prior to the filing of the motion to compel. Before using Zoom to conduct these discovery conferences, it was not unusual for me to issue lengthy discovery decisions after multiple telephone and/or court conferences. Since adopting the practice of using Zoom exclusively in this arena, my discovery rulings are far more concise, often taking the form of a detailed text order, and typically reflect some compromise the parties were able to reach during the conference. The orders do not take days or weeks to draft and are usually issued within hours of the conference, allowing discovery to proceed without interruption and preventing parties from blaming the discovery dispute and the time it took to resolve it when they seek an extension of the discovery deadline.

Criminal Duty Has Become More Manageable with Electronic Signatures and Telephonic Attestation

Having spent 17 years as a federal prosecutor before becoming a magistrate judge, I am well familiar with the experience of sitting with an agent in a magistrate judge’s chambers waiting to be seen for the signing of a search warrant. On busy days, when the magistrate judge had an unexpected arrest or a stubborn settlement conference, the waiting felt similar to being in a doctor’s office during flu season. And I recall many late nights or weekends, having to travel to a magistrate judge’s home for the signing of warrants after court hours, making handwritten changes to attachments or an affidavit because it was not possible to print out new versions. I do not miss that panicked realization that I completely forgot to print out and bring the motion to seal or the search warrant itself. The use of paper documents brought additional challenges. In Connecticut, we used red envelopes as a way of designating sealed materials. It was the job of the prosecutor to bring those envelopes to the Clerk’s Office for docketing, and, invariably, when the warrants were signed on the weekend or after the Clerk’s Office closed to the public at 4:30 pm, the prosecutor was supposed to bring them in for docketing the next business day. That did not always happen, so the Clerk’s Office was regularly chasing down prosecutors for these elusive red envelopes.

When the pandemic hit in March 2020 and I was on criminal duty, I did not significantly alter my procedures on the criminal side. In fact, the only real change was that I would meet agents in large conference rooms in the courthouse to sign the documents so I could maintain distance and chambers that had little contact with anyone other than me and my law clerks, though they were typically working from home. I recall taking oaths on documents from across long tables to create distance between me and the affiant. It soon became clear that COVID was going to be with us for some time. We began reviewing our procedures on the criminal side to determine how to best operate in a world on lockdown. Though some of the new practices, such as Zoom criminal proceedings, were temporary, others have become permanent and have shown that technology can help me be more efficient on the criminal side.

Starting in April 2020, I began signing all documents electronically and taking all agent oaths by phone under Fed. R. Crim. P. 4.1. Though we relied on an Administrative Office form for search warrants, we created our own forms for complaints and arrest warrants. Using Adobe, each magistrate judge became comfortable creating and maintaining an electronic signature stamp that, unlike the /s/ signature line used by the attorneys, includes the date and time and is password protected. When a prosecutor makes an appointment for the signing of any document that includes an affidavit, they email the electronically signed documents to the judge’s courtroom deputy and then call the judge either on the chamber’s phone or the judge’s cell phone with the agent on the line. After confirming that the agent is swearing out the same document the judge has been emailed, the judge takes the oath, ends the call, executes the documents, and emails them to the courtroom deputy for docketing. For orders that do not require an agent affidavit, such as pen registers, judges receive those documents electronically, sign them electronically, and email them to their courtroom deputies for docketing. Any proposed orders related to already existing cases, such as those addressing continued sealing or nondisclosure, can be filed electronically through the court’s electronic case file system, and the judge can sign them electronically and docket them using an iPad or laptop.

The widespread use of electronic signatures for search warrants, arrest warrants, pen registers, 2703 orders, and the whole host of other criminal matters typically handled by a magistrate judge, along with the procedures for swearing out oaths by telephone, have made me more productive and life easier on the prosecutors who come before me with criminal matters. If I have a search warrant appointment and am stuck in the courtroom with a new arrest, my courtroom deputy can simply email the prosecutor to reschedule the call. Thus, neither the agent nor the prosecutor is sitting in chambers wasting valuable time waiting for me. If I would like to make changes to an order or warrant attachment, I can use Adobe to edit those documents without sending the prosecutor back to their office to make the edits and reprint the documents or attempt to handwrite the changes myself. My courtroom deputy no longer has to chase down prosecutors looking for documents that were signed but never docketed because every signed order and warrant are immediately emailed to my courtroom deputy for docketing. Late at night and on weekends, prosecutors and agents do not have to travel to my house or meet me at the courthouse to swear out warrant affidavits. These efficiencies also help me during initial presentments because I am able to access charging documents and supporting affidavits either through electronic case files (ECF) or from my saved documents, whereas, for documents with wet signatures, I had to ask for paper copies or ensure that the paper documents were docketed on ECF before starting the proceeding.

I acknowledge that my own preference for being paperless leads me to favor strongly any technology that allows me to avoid printing documents. Still, it can hardly be argued that the papered route is the more efficient one. Though I recognize that some do not trust email or the electronic delivery of documents, I recall the first advice I received when I started as a magistrate judge, which was to make sure to buy a paper shredder because there is a real concern that courtesy copies of paper documents had and would end up in the regular garbage. Even in my relatively small district, there have been unfortunate examples over the years of intentional and unintentional leaks of confidential and sealed information from both paper and electronic documents. I have been astounded by the leaps forward our IT folks have made to navigate us through the pandemic and into the post-pandemic world. For document security, they are implementing platforms specifically designed to help judges more easily sign orders electronically and ensure that emailed documents are not compromised or disclosed to third parties.

Looking Ahead Should Bring Optimism for Better and More Effective Use of Technology

In some ways, I was disappointed when the emergency authority granted to courts under the CARES Act expired and certain technological advances were removed from our toolbox. We can no longer use videoconferencing to conduct most criminal hearings, even if a defendant specifically requests the accommodation. In Connecticut, winter weather is unpredictable, at best, and our pretrial facility for federal criminal defendants is located two hours away in Rhode Island. The selective use of Zoom could really help during snowstorms or for emergency bond hearings. I often noticed that family members who worked and would normally not be able to attend a first appearance and bond hearing could participate meaningfully in a Zoom hearing and, perhaps, make a difference in the decision whether to release a defendant on conditions.

On the civil side, though not attributable to any act of Congress, I hear more and more requests for in-person settlement conferences as some lawyers, even three years later, hold tightly to the belief that the old way is the better way and forcing an insurance adjuster to buy a plane ticket from Arkansas to Connecticut will somehow guarantee the money will flow and the case will settle. Yet, now more than ever, I notice that in-person settlement conferences, which are still few and far between, last longer and result in settlement less often than video settlement conferences. Litigants and their attorneys seem to come to the courthouse ready for a fight and eager for a judge to right the wrong they have suffered, which, of course, will not happen. On occasion, though it is rare, I even come upon an attorney who will confess that they still do not understand or trust Zoom, and I then have to suffer through their unsuccessful attempts to connect to the conference, often resulting in a laptop connection with no audio, along with a smartphone connection that has the echoing volume bouncing from the laptop, accompanied by an unpleasant closeup video of their nose or eyeball. Whereas in the pre-pandemic days I had a number of in-person settlement conferences end in limbo, requiring me to make countless ex parte telephone calls over the days and weeks following the conference to try to narrow the gap and eventually reach a settlement, Zoom conferences seem far less likely to require that kind of intervention. The cases that do settle tend to settle at the conclusion of the conference, and it is now the rare exception that requires my constant badgering through ex parte telephone calls.

My own approach is to wonder where we will be in five years with technology and where we were five years ago. I had never heard of Zoom five years ago, and though I boasted about being paperless, I signed paper documents every day and simply sent the paper down to the Clerk’s Office or back to the U.S. Attorney’s Office. During the height of the pandemic, technology somehow solved so many of our practical problems. It was not unusual for me to be participating in a settlement conference on my laptop and, during breaks, conducting initial presentations on my iPad, needing to remember when to don the robe instead of the suit jacket. Five years from now, I imagine more judges will be paperless, the use of videoconferencing will become even more prevalent in civil cases, and the use of electronic signatures and electronic filing will allow for even more efficient and expedient review of warrants in criminal cases.

Though it is sometimes hard to do, my answer to new technology tends to hinge on whether I can imagine this technology becoming a widespread reality for the court over time. Will technology save us time, make us more efficient, and help us be more effective? Though there is always a learning curve, and I vividly recall being the lead skeptic on the idea of video settlement conferences, I have learned over the past four years that certain technologies can bring positive change in our day-to-day work management. I can accomplish more, in less time, and with fewer distractions by relying on videoconferencing where appropriate and continuing to conduct in-person hearings where necessary. There are certainly reasonable limits. I recall the challenges presented when I conducted a civil rights bench trial via Zoom during the height of the pandemic and concluded that videoconferencing, though acceptable in an emergency, was no replacement for live, in-court, testimony. But with certain specific tasks, such as settlement and discovery conferences, Zoom and other videoconferencing platforms offer benefits that are hard to question. And by affording prosecutors and agents the ability to meet with me and execute documents by phone, I can more efficiently address the daily flow of criminal matters that come through our chambers without putting on hold my responsibilities in civil cases.

    Judge Robert M. Spector

    District of Connecticut

    Judge Robert M. Spector ([email protected]) was sworn in as a U.S. magistrate judge for the District of Connecticut on May 1, 2018, after serving for 17 years as a federal prosecutor at the U.S. Attorney’s Office. He is a graduate of Colgate University and Yale Law School.

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