Of the numerous changes imposed on the practice of law by the COVID-19 pandemic, perhaps nothing was more of a watershed than the broad move to online litigation. If you are a litigator, I would wager that you have both taken and defended more than a few depositions on Zoom, Microsoft Teams, Webex, Go To Meeting or a similar platform; participated in substantive motions hearings before a court or administrative body; and perhaps even had complete trials or administrative hearings—all online. Prior to February 2020, very few attorneys knew about, let alone had used, Zoom. By April 2020, every lawyer I know was using Zoom as a verb—several times a day.
The speed at which courts and administrative bodies embraced and implemented the technologies necessary to build the infrastructure and pivot to online courts this past year was not only rapid but comprehensive. The courts, law firms and individual practitioners who were positioned with strong IT resources, and who had already embraced the latest audio and visual technologies in courtroom evidence logistics, were better prepared to make the full transition and did so efficiently.
In the forums where I most frequently practice in my specialty of federal employment law, the U.S. Merit Systems Protection Board and the U.S. Equal Employment Opportunity Commission, the technological foundations were already in place, and the move toward an entirely online evidentiary hearing process was easier than in many courts that had to start from scratch.
Pre-Pandemic Calls for Online Court Proceedings
Oxford professor and legal seer Richard Susskind in his prescient pre-pandemic 2019 book, Online Courts and the Future of Justice, stressed that online courts are an important means to increase access to justice and promoted three changes to serve that goal: (1) online, paper-document- only proceedings for minor civil matters, (2) online oral hearings for certain proceedings including oral appellate argument, and (3) online video hearings and trial.
These methods have now become mainstream over the last year, which is an important and necessary step forward— not only to provide access to justice but also to keep the wheels of justice turning. Key in Susskind’s analysis is an important initial question that helps to legitimize and explain online courts: “Is court a service or a place?” This past year seems to prove that the answer is the former.
Since both the technology and the procedures are relatively new, online courts have understandably experienced growing pains, and problems have arisen that judges, court administrators, lawyers and participants have recognized as needing attention. Albert Fox Cahn and Melissa Giddings of the Surveillance Technology Oversight Project published an interesting study, Virtual Justice: Online Courts During COVID-19, which outlined developments in the first few months of the pandemic. That study and other more recent articles point out some important issues that need to be addressed.
Privacy and communication. One of the key problems of online hearings has been how attorneys and clients, located in separate places, can communicate during a hearing or trial. Those using Zoom can take advantage of breakout rooms to solve this problem, but other platforms can be problematic. Often lawyers and clients are forced to text each other on smartphones as allowed.
Additionally, issues of privacy are daunting. For instance, there is a risk that a participant might record a proceeding and publish it in an otherwise prohibited manner. Some courts have addressed this problem by making it clear that recording is not permitted—but one wonders how enforcement could be proactively pursued. Just wait until the first online “celebrity” trial brings this issue to greater public attention.
Access to bandwidth and adequate computers. One of the key limitations hindering the expansion of online courts is the fact that many litigants (and witnesses) don’t have adequate access to the bandwidth necessary to participate in online hearings or don’t have a computer that will facilitate a hearing with a number of participants. The District of Columbia has addressed this problem in a novel and competent way by creating a number of remote public sites located in the four quadrants of the District of Columbia that provide a safe and private location, a computer and connectivity. The locations are published on the District of Columbia Court’s extensive and easy-to-follow user-friendly website for online hearings, along with instructions on how to reserve the remote location for your upcoming court proceeding.
Pitfalls of online cross examination. Another complaint that has been repeated by practitioners is it is very hard to control a witness on Zoom or other online applications, and that cross-examination is especially challenging.
As Jamie Gorelick, a partner at WilmerHale and former deputy attorney general of the United States, pointed out during “Online Courts: Perspectives from the Bench and the Bar”—a 2020 webinar hosted by the Center on the Legal Profession—“without the same level of formality [as in-person proceedings], [witnesses] are likely to stray from the questions.” One possible solution to this problem is to conduct cross-examination in person—in a socially distanced courtroom. But this seems to undermine the efficiency and whole underlying purpose of online courts—and perhaps judges simply need to be more vigilant during online cross-examination in reining in witnesses and counsel.
Jury trials and the inherent differences between criminal and civil proceedings. Lurking in the background of online court proceedings are the constitutional guarantees of the Sixth and Seventh Amendments and rights to confrontation, and jury trials in both civil and criminal matters. Nevertheless, some states are moving forward with online remote jury trials, at least in both civil and many non-jury criminal cases, while criminal jury trials seem to be tentatively moving forward in live settings. Notably, in certain counties in Texas, the courts will deliver a tablet to a juror’s home if necessary and also provide step-by- step instruction. However, in a survey conducted in Arizona, a significant percentage of prospective jurors indicated that they did not have either appropriate computers, bandwidth or a location in their home where they could have the necessary privacy that would allow them to participate in a trial.
Remote criminal jury trials provide additional constitutional roadblocks. Despite the ongoing studies and attempts to maintain appropriate constitutional requirements, online criminal jury proceedings still seem to be something that few jurisdictions are willing to attempt. Even though online bail hearings have been something of a normality in many jurisdictions for years, a recent study in Baltimore found that they were unfair to defendants and deprived them of their Sixth Amendment right to counsel, since attorneys were denied the ability to speak with their clients. In Cook County, Illinois, a study found that video bail hearings undermined access to counsel and resulted in bail amounts that were 51 percent higher for those appearing virtually.
Although there will no doubt be growing pains in the rollout of online courts, the advantages have already proven themselves in a large span of proceedings, including simple civil proceedings and status calls, administrative proceedings, pretrial matters and discovery, including online depositions, and in full evidentiary trials in civil matters.
As technology leapfrogs forward, providing better platforms, more reliable connectivity and adequate bandwidth, and the ever-present vision of artificial intelligence in the courtroom, many of the above problems will be ironed out. However, for now it is clear that the pandemic has jump-started online courts and moved the timetable years, if not decades, ahead. Hopefully, we will get back to live in-person trials, especially jury trials, at some point in the near future, but one thing is clear: We have crossed a threshold and online court proceedings are here to stay.