After more than 260,000 virtual court events involving more than 2.7 million participants conducted during the COVID-19 pandemic, the New Jersey Supreme Court has decided that the “framework for the future of court operations” is online. The court recently issued an order outlining the ways in which technology can “provide expanded options for access, participation, timeliness, and justice.” ABA Litigation Section leaders predict that courts will begin to adopt similar positions across the country, and that virtual proceedings—with all their benefits and pitfalls—will become part of every litigator’s day-to-day practice.
Identifying When Virtual Proceedings May Be Appropriate
The New Jersey Supreme Court’s order sets forth several new parameters. First and foremost, judges will have the discretion to conduct court proceedings virtually or in person moving forward in generally all civil matters and certain criminal proceedings. However, some prescribed categories will default to one format or the other.
For example, unless an individual party can present facts and circumstances that would otherwise require an in-person hearing, the following matters will be handled virtually: routine motion arguments, criminal initial appearances, hearings involving criminal defendants already in state custody, small claims trials, uncontested guardianships, uncontested divorces, and other routine civil hearings.
By contrast, criminal jury trials will proceed in person, while appellate arguments, sentencing hearings, juvenile delinquency proceedings, evidentiary hearings, and other non-routine proceedings will generally proceed in person unless all parties consent to a virtual hearing.
The court explained that it considered both the pros and cons for litigators, parties, and jurists in categorizing types of proceedings. Although virtual hearings can sometimes result in reduced time and cost, as well as “fewer scheduling conflicts and requests for continuances,” the court noted that key stakeholders have pointed to the importance “of bringing parties together in person at certain critical junctures, including settlement conferences and proceedings that involve especially serious penalties or consequences.”
Recognizing the competing interests and “the evolving nature of court operations,” the court noted it will review the provisions of the order moving forward.
Increasing Access Through Virtual Proceedings
Litigation Section leaders see the New Jersey framework as a blueprint for expanding virtual proceedings nationwide, which may come with several advantages. For example, Rachel Pereira, Washington, DC, cochair of the Section’s Access to Justice Committee, believes virtual judicial proceedings have opened up access to proceedings for a segment of the population that might otherwise have difficulty getting to the courthouse.
“Videoconference and remote court proceedings have benefit,” Pereira asserts. “Remote proceedings allow people to participate without having to take time off work and allow low-income litigants with commuting issues or child-care issues to be able to have greater access without the burden that would have been caused otherwise.”
However, Pereira notes that the expansion of virtual proceedings presupposes that the litigants and parties have access to a stable internet connection and technology, which could prove expensive. She proposes that courts consider providing a “hotspot system” or some other technology that individuals can borrow to access a judicial videoconference. “I’m not a technology guru,” Pereira remarks, “but if libraries can loan computers to people, certainly courts can do it.”
Allowing courts more flexibility to utilize virtual proceedings will increase citizen access to the judicial system under the right circumstances.
Other Section leaders agree that allowing courts more flexibility to utilize virtual proceedings will increase citizen access to the judicial system under the right circumstances. “I anticipate that courts will continue to offer virtual hearings and trials as an alternative—rather than as the sole option—even when regular in-person proceedings resume,” predicts Adrian K. Felix, Miami, FL, cochair of the Section’s Judicial Intern Opportunity Program. “It is important to remember that in-person hearings do not have an insignificant time and cost burden, particularly for individuals, so having a viable alternative to that should be an overall positive,” he affirms.
Increasing Efficiency Through Virtual Proceedings
More virtual proceedings will also lead to a more efficient court system overall, according to Felix. “For example, the administrative side of scheduling hearings is easier because lawyers can fit more on their calendars when travel is not involved,” he notes. “And that, in addition to reducing costs associated with traveling, allows litigation cases to be moved along faster, which in turn helps with judges’ caseloads and overburdening of the system in general,” Felix concludes.
Potential Setbacks in a Virtual Environment
While there are many tangible benefits to taking court online, Section leaders recognize that plenty of kinks still exist in virtual litigation. Courts must address these issues before proceeding with a more aggressive implementation of virtual litigation moving forward, according to both Pereira and Felix.
One potential downside is the limited ability for litigators to engage in confidential communications with clients who may be in a separate physical location. “If there is no provision for attorney-client communication that can occur when appearing separately remotely, there is less communication,” Pereira observes. “The quality of care that our clients experience when there is no private space to speak can be difficult, and not having the ability to communicate confidentially can cause a hardship to the types of communications received,” she warns.
Another issue is that it may be more difficult to communicate through nonverbal cues, which are typically easily visible during in-person hearings but not always readily ascertainable on a small box in a videoconference. “One of the main limitations and jurist perspective is just the ability to pick up on and react to nonverbal communications,” Felix stresses. “Body language can be as important as verbal communications and a static camera often hides or limits the things we may otherwise spot in person.”
Virtual Litigation Is Here to Stay
The New Jersey Supreme Court’s predilection toward virtual proceedings in civil motion practice and even certain criminal proceedings likely signals a new reality nationwide, according to Section leaders: Virtual hearings will not disappear post-pandemic.
“As the saying goes, necessity is the mother of invention, and the COVID-19 pandemic has forced courts and lawyers to pivot and find a workable alternative to in-person hearings and trials,” Felix offers. “So now, having spent the better part of two years refining a virtual alternative, and recognizing the efficiencies that have come with it, I do not see courts or lawyers simply abandoning the option in favor of in-person proceedings,” he opines.
Likewise, Pereira believes virtual hearings are here to stay and expects some growing pains along the way. “Recognize how incredibly difficult it is to shift methods, particularly when our judicial system is set up on precedent,” she states. “Moving away from what we have always done is the antithesis of our profession, and I understand why it might be difficult.”
That said, Pereira recognizes virtual litigation as a viable part of attorneys’ everyday practice moving forward. “I like the idea so long as we can recognize the challenges ahead and address them,” she concludes. “Address the challenges and then what a wonderful world it could be.”
- Matt Reynolds, “Courts attempt to balance innovation with access in remote proceedings,” ABA J. (Feb. 1, 2021).
- Ellen Rosen, “The Zoom boom: How videoconferencing tools are changing the legal profession,” ABA J. (June 3, 2020).
- Stephanie Zimmerman, “Divorce lawyers say technology changes may outlive the COVID-19 pandemic,” ABA J. (June 11, 2020).
- Benjamin K. Sanchez, “How to prepare for the post-pandemic courtroom,” GPSolo Mag. (Mar./Apr. 2021).
- Ronza J. Rafo, “Efficient lawyering in virtual court,” GPSolo Mag. (Aug. 13, 2021).
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