The COVID-19 pandemic has significantly altered the way law is practiced, particularly with the rapid adoption of remote appearances in courts and other venues. It is time to rethink the wholesale adoption of the remote practice of law and focus on the types of matters that benefit from this technology and the areas where in-person appearances are critical. While the Brennan Center for Justice at the New York University School of Law has done a superb job at studying this issue, their work focuses on the inequities and access to justice issues. The ABA is uniquely positioned to address those issues as well as many others that arise.
Many jurisdictions have continued to allow lawyers to practice exclusively remotely since the pandemic, a change that has proven to be an effective tool in many respects. Remote practice can reduce travel time, minimize costs and expand the geographical reach of lawyers. In addition, practicing remotely enables lawyers to appear in more geographic areas within a state or states where they are licensed than they could when they were constrained by the limits of reasonable travel distances.
However, the post-pandemic era has also seen the development of haphazard and inconsistent policies regarding lawyer remote appearances. These policies have led to situations that benefit neither the lawyers nor their clients. More importantly, this inconsistency has, at times, prevented clients from receiving the level of legal representation they deserve. For instance, while some courts have embraced remote proceedings, others have reverted to requiring in-person appearances for a wide range of matters, regardless of whether physical presence is truly necessary.
This practice goes beyond just the courts and extends to practice before administrative agencies, quasi-judicial organizations and other entities. In some cases, these agencies, like the courts themselves, have taken the easier route by either going exclusively to remote appearances or reverting to pre-pandemic life when lawyers had to appear for every event, regardless of whether in-person attendance was really necessary.
In certain circumstances, courts understandably require lawyers to be physically present. Serious criminal cases and major trials often mandate the presence of both parties’ lawyers in the courtroom. These proceedings––whether they involve arraignments, trials or other crucial events––are pivotal moments in a case. In these instances, the physical presence of counsel is essential to ensure effective representation and can make an enormous difference in the outcome of the proceedings.
When a client is charged with a felony or a serious crime, the lawyer’s in-person participation is crucial for presenting evidence, cross-examining witnesses and engaging in other activities that cannot be performed as effectively remotely. The need for a lawyer to be physically present in these scenarios underscores the limitations of remote practice in certain contexts.
Yet, the lack of well-thought-out requirements for when lawyers must appear in person versus when they can appear remotely has created confusion. This confusion has significant implications for both the legal profession and the clients we serve.
The Brennan Center’s 2020 report on video proceedings offers valuable insights into the impact of remote practice on fairness and access to justice. The report found that in some circumstances, remote proceedings can negatively impact the attorney-client relationship, affect the perceived credibility of witnesses and cause some participants to disengage with the judicial process. In some cases, outcomes in cases changed. Conversely, the report indicated that properly implemented remote proceedings might have significant benefits, including expanding access to legal services.
The report and accompanying materials also highlighted problems with remote hearings. For example, a study of criminal bail hearings found that defendants whose hearings were conducted remotely had substantially higher bond amounts set than their in-person counterparts. A study of immigrant courts concluded that the use of video conference hearings increased the chances of being deported. These examples highlight the severity of the problem.
It is therefore important to explore why lawyers are required to appear in person for some matters and why remote appearances can be appropriate in others. For example, most people would agree that in cases where the outcome significantly impacts the client’s life, such as criminal trials, in-person attendance is essential. Similarly, mediations and arbitrations are frequently more effective when conducted in person where all parties are present. In those situations, the absence of Zoom-related distractions, combined with the ability to observe body language and engage in direct communication, enhances the likelihood of a successful outcome.
Eye contact, body language and other nonverbal cues play a vital role in legal advocacy. These elements are difficult, if not impossible, to replicate in remote settings. Eye contact on Zoom is, for all intents and purposes, impossible. I conducted 12 oral arguments remotely during the pandemic, and my ability to engage with the judges and justices was qualitatively different from in-person arguments.
When lawyers, judges and clients are physically present, their focus is undivided, and their interactions are more impactful. For instance, during a mediation, the parties’ presence allows the mediator to gauge their sincerity and their commitment to resolving the matter. The same principle applies to certain pretrial hearings, where a lawyer’s ability to engage directly with the judge can influence the proceedings. Furthermore, these nonverbal elements contribute to the perception of fairness and trustworthiness, which can be pivotal in legal outcomes.
Remote lawyering also offers benefits in many contexts. It increases client accessibility, reduces costs for both lawyers and clients, facilitates more flexible scheduling, and enables lawyers to represent clients in geographically remote areas. For instance, before the pandemic, my ability to represent clients was often limited to those located within the Philadelphia region. Representing clients in Pittsburgh or other distant locations was impractical because of the time and expense associated with travel. Remote proceedings have changed this dynamic, allowing lawyers to practice statewide and enabling clients to access specialized legal representation more tailored to their needs, regardless of their location. This shift has particularly benefited clients in rural or underserved areas who previously struggled to find adequate legal representation.
In Pennsylvania workers’ compensation cases, the transition to remote hearings has been particularly impactful. Historically, these cases have required lawyers to attend every hearing in person. Now, most events in these cases are conducted remotely, reducing costs and increasing efficiency. This change has expanded the geographic areas where lawyers can practice and has made legal representation more accessible to clients. Additionally, it allows lawyers to handle more cases without the burden of constant travel. The ability to focus on substantive casework rather than logistical concerns has been a game changer for many practitioners.
The advantages of remote lawyering extend beyond workers’ compensation cases. Routine legal matters that require minimal interaction, such as short status hearings, are ideally suited for remote handling. In the past, even these brief proceedings required hours of travel. The advent of video conferencing tools like Zoom and Microsoft Teams has made it possible to handle such matters efficiently and effectively. Before these technologies became widely adopted, remote proceedings were typically conducted via telephone, which lacked the visual and interactive elements necessary for effective advocacy. The integration of video technology has elevated the quality and utility of remote practice, making it a viable option for a broader range of legal matters.
But even remote lawyering is a double edge sword. For example, if judges still use a “call of a list” method, they aren’t respecting lawyers’ time. On the other hand, scheduling hearings for a time certain enhances efficiency and eliminates lawyers sitting around (or just staring at a Zoom screen for hours).
The inconsistent adoption of remote proceedings across jurisdictions highlights the need for comprehensive and standardized rules. Some jurisdictions have developed policies on an ad hoc basis, while others have implemented more structured approaches. Unfortunately, these efforts have often failed to address the broader implications of remote practice.
The ABA is in a leadership position to develop nationwide principles that would govern remote and in-person proceedings. These principles would ensure consistency and fairness while preserving the benefits of remote practice. The establishment of clear, nationwide standards would also provide much-needed guidance for courts, lawyers and clients alike.
Certain matters clearly warrant in-person attendance. Trials, for example, require physical presence due to the importance of witness credibility, body language and other non-verbal cues. Family law cases involving child custody or domestic violence also benefit from in-person proceedings, as they allow judges to observe the parties’ demeanor and interactions. These observations are critical for ensuring fairness and due process. Similarly, cases involving complex factual disputes or high-stakes outcomes often require in-person presentations of evidence and arguments. The courtroom environment facilitates real-time legal arguments and immediate responses, which are challenging to replicate in a remote setting.
Conversely, many remote proceedings such as status conferences, routine motion hearings and initial appearances in less serious cases are examples of matters that are well-suited for remote handling. Remote proceedings also benefit individuals with disabilities or those facing challenges such as childcare responsibilities or long travel distances. For instance, Social Security permits claimants to appear by video or to request an in-person hearing. By eliminating the need to travel to a courthouse, remote proceedings make the legal system more accessible to vulnerable populations. This increased accessibility underscores the potential of remote practice to democratize access to justice.
Efficient case management is another area where remote proceedings have proven invaluable. Scheduling conflicts and travel time are significantly reduced, allowing lawyers to focus on substantive legal work. For instance, traveling to Philadelphia—a mere 10 miles from my office—typically required an hour each way, resulting in two hours of unproductive time for every routine hearing. Remote proceedings eliminate this inefficiency, benefiting both lawyers and clients. The cumulative time savings have allowed lawyers to take on additional cases or dedicate more attention to complex matters.
Probate matters, for example, provide a compelling example of the advantages of remote practice. Initial hearings and uncontested matters are now frequently handled remotely, enabling clients to participate without traveling to a courtroom. This approach has been particularly beneficial for out-of-state clients who no longer need to travel for short, procedural hearings. By reducing the time and cost associated with these proceedings, remote practice has made the legal system more accessible and efficient. Additionally, this shift has allowed probate courts to streamline their operations, reducing backlogs and improving overall efficiency.
The Brennan Center report outlines 10 principles for the effective use of remote proceedings, emphasizing the importance of tailoring approaches to the type of case and the needs of the parties involved. For example, it recommends engaging a diverse array of stakeholders, such as community advocates and public health experts, to ensure that remote proceedings address the needs of all participants.
Other key principles include safeguarding attorney-client privilege, providing additional support for self-represented litigants and addressing the digital divide. These measures are essential for ensuring that remote proceedings are fair and accessible. The report also highlights the need to establish safe access points for litigants, ensure compliance with legal and constitutional requirements, and study the impact of remote proceedings to identify areas for improvement. The thoughtful implementation of these principles could significantly enhance the effectiveness and fairness of remote legal practice.
In summary, the ABA can take the lead in creating nationwide principles to govern remote and in-person proceedings. By establishing clear guidelines, the ABA can ensure that courts adopt consistent and effective policies. These principles should balance the benefits of remote practice with the need for in-person proceedings in certain cases. For instance, trials and other high-stakes matters should require physical attendance, while routine hearings and procedural matters can be handled remotely.
The lessons of the pandemic have demonstrated the potential of remote practice to improve access to justice, reduce costs and increase efficiency. By adopting a thoughtful and comprehensive approach, the legal profession can build on these lessons to create a more equitable and effective system.
Remote proceedings should complement, not replace, in-person courtrooms, providing flexibility and enhancing the practice of law for lawyers and clients alike. Moreover, the continued exploration of best practices and the integration of feedback from diverse stakeholders will ensure that remote practice evolves to meet the changing needs of the legal system.
