chevron-down Created with Sketch Beta.

Litigation Journal

Litigation Journal | Summer 2023: Legitimacy

Remote Proceedings: Why Do Lawyers and Judges Hate Evidence?

Bridget Mary McCormack

Summary

  • COVID forced courts to reconsider how to provide the problem-resolving services that millions of Americans depend on every day.
  • Remote proceedings offer more access to lawyers, more access to court hearings, and more convenience to parties and witnesses.
  • They offer more cases resolved on the merits, more problems solved, more diverse jury pools, and more engaged litigants and juries.
Remote Proceedings: Why Do Lawyers and Judges Hate Evidence?
kokouu via Getty Images

Jump to:

For court systems, the question of whether justice is a service—the delivery of just outcomes and the fair resolution of disputes—or a place (the courthouse itself) had been a topic of debate before the pandemic. The former and broader view had little support from those who could usher in change. But the pandemic changed that. When the courtroom doors closed, COVID forced courts to reconsider how to provide the problem-resolving services that millions of Americans depend on every day.

In Michigan, for example, nearly 1,000 judicial officers pivoted to holding remote proceedings on Zoom and, in doing so, expanded public access by live streaming to everyone with internet access. Assisted and encouraged by the State Court Administrative Office, judges and court administrators shared ideas about implementing best practices for virtual courtrooms, with a particular focus on helping litigants who navigate courts without lawyers. More than six million hours of remote proceedings and 250,000 local court YouTube subscribers later, the verdict is in: Justice is a service, not a place.

But what happens next is what matters.

As our country slowly pulls itself out of the isolation that marked the worst of the pandemic, I worry that our courts will change direction—abandoning practices that make justice more accessible in favor of more familiar and traditional ones. The temptation to go back to how things were before the pandemic might be impossible to resist. “The way we’ve always done business around here” has a powerful gravitational force, even when that way may not be the best way.

Most businesses and industries have become stronger by responding nimbly to consumers’ demands for more remote access to goods and services. In the entertainment industry, for example, the major studios are testing brand-new release strategies for their biggest titles by combining traditional theatrical runs with limited streaming runs. Many of the major streamers have adopted technology allowing friends and family to watch “together” from different locations, syncing the movie streams so viewers can watch and whisper to each other just as they would in a theater, only virtually. Behind the scenes, movie and television makers quickly figured out how to adapt to the challenges of remote preparation and shooting, and along the way, they discovered the efficiencies of using Zoom instead of traveling to endless in-person meetings. Show business, as the saying goes, is very much a business, and ultimately the marketplace will determine the entertainment industry’s future.

These changes transcended industry and occupation. Many tech companies once had a reputation for offering perks like free meals and on-site gyms to keep employees at work. Now, 85 percent of tech workers do their jobs in a hybrid or fully remote model. In higher education, colleges and universities had to quickly adapt to online learning in March 2020. Since then, access to virtual learning and online resources has provided new opportunities for many students. Students who work full-time or have children may be able to participate in class remotely and meet with professors on Zoom instead of in person. At some schools, online platforms now provide greater access to resources such as career guidance and mental health services. What began as a hasty adaptation may have actually increased equity among students and made higher education more attainable. Across sectors, organizations large and small have retooled supply chains, transformed work-from-home policies, and dramatically upgraded their abilities to interact with customers online. Experts tell us that the change catalyzed by the pandemic is just beginning; according to the management consulting company McKinsey, “[e]ach sector, industry, and function will have to reinvent itself to achieve maximum growth and sustainability.”

Justice and Pandemic Innovations

Justice systems, however, operate outside the discipline of the market. Reinvention is not in our playbook. Some individuals and businesses can seek private alternatives to litigation—arbitration, mediation, and whatever new solutions legal tech may bring. But most people with justice problems can’t afford to opt out of the public justice system, and no options exist in their communities for resolving disputes outside of the courthouse. For them, access to a process for resolving grievances is limited to the options those of us with a voice in the justice business choose to provide.

The pandemic-related uptick in participation rates for the poor and lawyerless should command our attention. Based on data gathered across jurisdictions, certain facts have become abundantly clear. Default rates for self-represented tenants and people facing debt collections dropped significantly thanks to remote hearings. Those sorts of cases occupy a very large portion of state court dockets. An improvement in how those cases go is, in itself, a significant improvement in our justice system.

Kids and survivors of domestic violence benefited from the safety of remote appearances. Many personal stories add important details. A domestic violence survivor in Michigan had a hearing scheduled for a personal protection order. A local legal aid officer asked for a remote hearing option. This would have allowed the lawyer to represent the survivor at that hearing and would have given the survivor a safe way to have her concerns considered without being in the same space as her abuser. The court refused.

Because the lawyer couldn’t travel to the courthouse without missing a number of already scheduled remote hearings for other clients that morning, the lawyer had to tell the client that she would be on her own. The night before the hearing, the client texted her lawyer, “Never mind. I can’t take the chance of being alone with him at the hearing.” It’s this simple: If our courts don’t allow some participants in the justice system to participate remotely, their voices will not be heard. We will have failed them by our unforced error.

To be sure, remote options can consume more time for judges and court staff. When more people show up on Zoom, it takes longer to hear all of them out. And in certain court hearings, an in-person experience is preferable, for a variety of reasons. Despite these inconveniences, though, the ability to serve more people should be viewed as a great thing for justice. Ultimately, however, judges are the ones who make the rules about how our courts operate. Unless judges absorb the data and extrapolate the important lessons we’ve learned about the benefits of remote access for those navigating justice without lawyers, nothing will change. If judges want to go back to the way things were, that’s what will happen.

In courts across the country, conversations are under way about which lessons learned from the pandemic we will carry with us. These conversations are formal and informal. They also are happening at conferences, in webinars, and in bar association meetings. Some courts are considering rule changes to make remote practice permanent.

Using Data to Make Decisions

I have been part of many of these conversations, and I have been struck by one theme that carries through all of them: The participants have strong views about the best ways to move forward, and those strong views are almost never grounded in data. Lawyers and judges often express adamant opinions about which parts of the adjudicatory process shouldn’t be handled remotely, but those opinions are rarely informed by evidence.

The views about which parts should or should not be virtual are far from uniform. There seems to be significant agreement that jury trials shouldn’t be conducted remotely, despite the contrary experience from at least two different court systems. There is also a fair amount of agreement that remote evidentiary hearings present challenges similar to those of remote jury trials. At that point, consensus ends.

Some participants (usually judges) believe that an even greater range of court hearings can’t be conducted well remotely. They cite concerns about disrespect for the judicial process and sometimes the judge. They talk about the failure of some litigants (almost always self-represented) to understand the seriousness of a proceeding. They offer anecdotes to buttress their position.

What I almost never hear is empirical evidence. The advocates of a near-universal return to the courtroom express strongly held opinions about the use of remote technology, but those opinions are rarely grounded in anything more than personal beliefs—the kind of opinions judges routinely reject on Daubert grounds.

Some of this makes sense: Data are hard to come by in courts. Without a unified state judiciary (exacerbated by an inadequately funded court system), data can be impossible to compile. In Michigan, for example, across 242 trial courts, we have 16 different case management systems. It would require a whole lot of human hours translating data across those different systems to learn much about any statewide trends. And so we have often made decisions about court rules and processes without evidence, instead relying on gut instinct. In the absence of data, many participants in these discussions default to the way things were.

But putting aside the problem of data deserts, our conversations about how we should deliver justice don’t usually even address the kinds of measurements we need in order to make good decisions on how to use remote proceedings going forward. Anecdotes drive the debate. We all saw the video on Twitter; none of us wants our future to be determined by a lawyer who insists he is not a cat.

What metrics should we collect and analyze if we want to make evidenced-based decisions about remote proceedings? Why aren’t our discussions about this topic focused on establishing what we want to know and then figuring out how to measure it?

When it comes to data, medicine has gone through a fundamental change in the last half a century. Historically, practitioners’ subjective judgments and experiences drove decision-making. If a physician’s personal experience with a course of treatment was positive for one patient, the physician opted for that treatment for others. (“Leeches worked for Mr. Smith when he had similar symptoms, so let’s go with leeches.”) Now, formal analyses of evidence collected during strategically planned studies drive decision-making. Reflecting this shift, medical education and licensure have evolved, too.

The evolution of medical practices from expert-based to evidence-based was slowed by critics who called the latter “cookbook” medicine, forced on practitioners by cost-conscious hospitals and insurance companies. But those criticisms misunderstood that the new approach combined individual clinical expertise with the best available external evidence. Today the clinician starts with an understanding of the patient’s individual condition and preferences, then considers the relevant research regarding tests and treatments, and then develops recommendations using both.

It is hard to imagine the alternative to evidenced-based medicine. Even the general public has become familiar with online medical publications and internet debates about the impact of new research on old therapies. Medicine has become accessible and transparent. What does this kind of data look like when it comes to administration of our justice system?

Our forced pandemic innovations offer some new and compelling evidence that every court system should examine closely. Zoom collects data for us and aggregates the data, and some innovative court leaders have paid attention. What’s baffling is that other leaders have chosen to ignore the evidence in favor of the comfort of the status quo ante.

The data tell us that when people are given a remote option for appearing in court, default rates among self-represented litigants decline precipitously. And, not surprisingly, time not spent commuting, waiting in line at our courthouses, and sitting through case calls in our courtrooms means that lawyers can expand the reach of their services. This time saving has had an especially profound impact for hard-pressed legal aid attorneys. Lakeshore Legal Aid in southeast Michigan has dramatically increased the number of clients its lawyers serve, from 3 or 4 in just one court’s docket to far greater numbers in many more courts. This meant one lawyer could now represent 10 clients across different courts’ morning dockets and 10 more in the afternoon—a significant upsizing of capacity.

For the public, video hearings have helped solve not only the greatest challenge brought by the pandemic—how to keep people safe—but fortuitously opened a door to solving critical access-to-justice problems. Hearings held by video don’t force people to take hours or days away from work or school to travel to a courthouse, or to pay for child care they can’t really afford, or to find a ride because they don’t have access to reliable transportation. These outcomes are completely unsurprising. Indeed, they’re so self-evident that, even absent data, we can take “judicial notice” of them.

Some of the benefits of virtual court proceedings were less forseeable. Indeed, a 2021 study of remote court hearings in Texas revealed an upside that would have seemed impossible before the pandemic: Video hearings generate greater interest and participation by the public as jurors. Washington State, where both remote jury selection and trials have been conducted regularly, has seen similar results. Jury pools are more experienced and more diverse, juries deliberate longer and more thoroughly, and jurors report greater satisfaction with their experiences.

We have new qualitative data, too. Judges in abuse and neglect cases and in custody cases report more engagement from kids in particular. Just as with jurors, more parents (especially incarcerated parents) can participate when the costly barriers of time and travel are removed. Virtual proceedings also allow overworked attorneys and child welfare professionals more time for casework, instead of traveling or waiting around in courthouses. More witnesses show up—medical professionals who could not have taken the time needed to attend in-person hearings can now appear with remote options.

In probate court, videoconferenced hearings enable far greater participation from families in guardianship cases. Most family members are not necessary parties to these proceedings, and the practical barriers to appearing effectively cut them out of the decision-making process. With video options, courts are seeing far better participation from respondents and family members. Judges also report that the information they receive from the folks who attend virtually is of higher quality. People are more relaxed, engaged, and satisfied with the experience. Remote mental health hearings are less stressful for respondents, and the anxiety and expense of personal security within the courthouse no longer influence the hearing testimony.

With more participation from all litigants and interested parties, judges can make more informed decisions. And when litigants are more comfortable participating, they are more likely to get the information they need to understand what has happened and their next steps. When the process is both fair and perceived as fair, litigants are more likely to accept even disappointing results.

Change and Legitimacy

Law is a profession slow to change. There are lots of reasons why. We are trained to avoid risk and to help others avoid risk. Our norms and rules are grounded in honoring past decisions. And courts—judges in particular—have accepted the accretion of additional barriers to change. Outdated technology, inadequate funding, and politically elected funding units make it hard to keep up with just the day-to-day work. I don’t know of a state court with funding to pay a chief innovation officer.

Today’s courts face increased legitimacy threats. In its annual survey on this topic, the National Center for State Courts found that in 2021, 64 percent of respondents had a great deal or some confidence in state courts, down from a high of 76 percent in 2018. The Annenberg Public Policy Center reports that over half of Americans (53 percent) have “little or no trust in the Supreme Court to operate in the best interests of the American people,” up 22 percentage points since 2019. And according to the Pew Research Center, 45 percent of American adults believe the Supreme Court has too much power, up from 20 percent two years ago. These same surveys, however, show broad support for courts continuing to use online proceedings, and, not surprisingly, the level of support grows dramatically among younger respondents.

The fact that so many Americans must navigate justice problems without lawyers exacerbates the public confidence decline. According to the most recent Justice Gap report by the Legal Services Corporation, low-income Americans do not have any or enough legal help for 92 percent of their substantial civil legal needs. With issues ranging from benefit eligibility to housing to custody, 74 percent of low-income households experienced at least one civil legal problem in the past year. If most people think the justice system is out of reach for them, they are less likely to have confidence in it.

We have an opportunity right now to learn from the massive changes that the pandemic forced on us. We can benefit from our serendipitous opportunity to change our practices by examining and experimenting with alternative ways of providing access to people who need it most. If we want to.

Those who advocate for returning to the status quo ante usually don’t cite their own convenience as the reason for doing so. Judges and others who resist remote access tend to give other reasons for abandoning pandemic-inspired practices. For example, they talk about how justice can be delivered only in the majesty of a courtroom. But the millions of Americans navigating justice problems aren’t looking for majesty. They’re looking for help.

I don’t have a fixed view about which metrics we should care about as we determine which COVID consequences we should keep and which ones we should discard. But the following seem to me a strong list of keepers: more access to lawyers, more access to court hearings, more convenience to parties and witnesses, more cases resolved on the merits, more problems solved, more diverse jury pools, and more engaged litigants and juries.

In our courtrooms, we require evidence in support of any claim for relief or defense. Strict rules guide the information fact finders are allowed to hear. We don’t accept a lawyer’s proclamation that her client must win because that’s her “instinct” or because her client has always won in the past or because “that’s the right answer.” It’s silly to think we would accept an argument based solely on whims and unproven assumptions. And yet. Our conversations about our own ways of doing things, processes that we know drive substantive outcomes by making justice more or less accessible for more people, are so often reduced to exactly these sorts of confident, evidence-free proclamations.

Why do we dislike evidence so much?

    Authors