A shift in policy regarding remote courtrooms is raising some critical questions around legal procedure and how the public engages in courtroom justice.
In March 2020, court buildings around the world shut down in response to the rapid spread of COVID-19. While informal meetings were an easy fix for most of us – hop on Zoom or Google Chat and go – legal proceedings were a bit stickier. We simply did not have procedures in place for this kind of upheaval.
The last couple of years have proven to be an unscheduled beta test for a new world of virtually-accessed justice. It’s not so much a stop-gap as an experiment in the use of a variety of technologies (some new, some old) in and outside the courtroom.
The Remote Courtroom
Since the pandemic sent courts into lockdown mode, millions of proceedings – including trials and hearings – have happened remotely through video conferencing. Courts at all levels developed protocols and rules for using Zoom and other systems to continue the work of the courts. But making the shift has proven to be, well, complicated.
In Lake County, Illinois, the 19th Judicial Circuit Court rose to the challenge. Over the course of the pandemic, the court judges and administrators developed a clear and transparent procedural system that provides participants and observers with access to court proceedings remotely. For an attorney or litigant, this process kicks in as soon as they are directed to appear. Initially, it was remote or bust, but since many courts have re-opened, there are now options — at the judge’s discretion of course.
“Attorneys and litigants that received a notice or specific directions from the judge to attend a court hearing remotely can participate remotely. If you are directed to appear ‘in-person’ then you must appear ‘in-person’ at the Courthouse.”
The circuit court developed a protocol for participants that details how to install Zoom, how to use video and audio effectively, and even – perhaps most importantly – how to behave and dress appropriately.
In this way, the court reinforced and maintained the high standards it had when all litigants were required to appear in person at the courthouse.
Judge Roy Ferguson of the 394th district court says:
“I took steps to ensure that the dignity of the bench was maintained. I’d wear a robe and require litigants and lawyers to wear traditional courtroom attire. And I’d display the same professional demeanor as in the courthouse.”
The justice system suffers when inequities in accessibility are allowed to exist. For individuals with disabilities, remote courtrooms can provide effective access that wasn’t possible before.
Judge Stephanie Burke of Jefferson County, Kentucky says that remote hearings are less intimidating to many patients living with mental illness, who may already be in distress. It can be damaging to transfer distressed people to a courthouse, forced to appear in a room full of strangers and packed with uncertainty.
“It’s a more compassionate way of handling those dockets, and I expect we will continue to utilize remote platforms in those cases even after COVID restrictions are lifted.”
Court attendance has gone up across the board since remote proceedings kicked in. There is potential for an increase in transparency, with more and more jurisdictions opting to livestream proceedings. Some have reported an increase in volunteer recruitment, now that interested parties can observe an active courtroom from home.
By eliminating fees for things like lawyer travel and lengthy wait times, more people can afford legal representation in a virtual courthouse. Moreover, a streamlined and efficient practice can permit lawyers to take on more clients, and over a broader geographic area than ever before.
But with accessibility comes, well, access. And it’s not always easy to gatekeep in our digital age. For example, a virtual court hearing in Ontario, Canada was “Zoom bombed” with verbal abuse and sexual images after the plaintiff posted Zoom meeting login details on Twitter.
Some legal experts worry that remote hearings give an unfair advantage to large law firms that can pay for better lighting and stable internet connectivity for themselves and their clients. Whereas litigants were previously judged on their appearance, speech, and manner, now they can also be judged on the appearance of their homes and workplaces.
Questions have been raised about whether remote proceedings can honor a defendant’s Sixth Amendment rights:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
It’s not only witness-defendant interactions that are key. Communicating with a jury is an artform that skilled attorneys practice well. One must maintain the jury’s attention, gauge and respond to their level of understanding, ensure they can clearly see and hear evidence, and appeal to them collectively and memorably. Can this type of rhetoric be replicated through a webcam? What might be lost in the process and – more importantly – how might it impede the seeking of justice?
The Court of Public Opinion
Equal parts blessing and curse, social media provides unprecedented access to information (and disinformation) of all kinds. The public needn’t be present in a courtroom – remote or in-person – to get wind of all kinds of drama. Here are a few examples:
Depp v. Heard
The defamation case between divorced actors Johnny Depp and Amber Heard drew nationwide attention as it unraveled minute-by-minute across the internet, plagued by misleading video editing and uninformed editorializing on TikTok, Facebook, and beyond. Social media posting had an enormous impact on the public’s opinion of both actors and even served as evidence in the courtroom.
But that wasn’t all. Eve Barlow, a friend of Heard, brought to the court’s attention a suspicious January 2021 tweet by key Depp witness Gina Deuters. As a result, Judge Penney Azcarate banned Barlow from the courtroom for breaking the no-phone policy.
Later, upon hearing suspicious testimony from Deuters herself, Judge Azcarate excused the jury long enough to ask a question of her own: Had Deuters watched any of the trial testimony online prior to taking the stand?
“I’ve seen clips of it online, yeah,” she replied.
Azcarate dismissed her and struck her testimony – by all accounts important – from the record.
Drama and gossip aside, there are many social media accounts using their influence for good – to disseminate important factual information to the public.
For example, @DemocracyDocket, founded by elections lawyer Mark Elias, is a Twitter account dedicated to providing information and analysis about voting rights and elections. With a great deal of disinformation regarding elections flying about, it’s important to have reliable sources readily available.
Lots of ink has been spilled in recent years over the First Amendment’s applicability to social media posting – especially when it’s used to mislead the public. The Supreme Court’s 2022-2023 docket includes a case challenging Section 230 of the 1996 Communications Decency Act, which protects social media platforms from legal liability for content that was posted by users.
Attorneys Stephen F. Rhode and Naomi Gilens and constitutional scholar David L. Hudson Jr. have outlined arguments for and against defining the First Amendment’s reach to include social media platforms.
You can watch their webinar on YouTube:
Training via Online Law School
As computers and fax machines became commonplace in law offices in the 1980s and 1990s, many lawyers stubbornly refused to adopt the new technology. Even the convenience of e-filing documents was met with skepticism and quite a bit of grumbling.
It’s not surprising, then, that in 2020 the sudden and mandatory shift to remote court proceedings triggered an unexpected wave of lawyer retirements. Unfamiliarity with technology, coupled with stress about a potential public fumble, meant that many senior attorneys didn’t want to put their stellar professional reputations at risk by entering this virtual realm.
Younger attorneys are already at an advantage when it comes to practicing law remotely. Most have grown up using online communication – the next generation of lawyers even more so. Virtual hearings will be part of the legal profession for the foreseeable future and young associate attorneys will be great assets to senior partners.
Even more importantly, lawyers must be competent in the computers, software, and peripheral hardware needed to participate in the process as well as educate and assist clients and witnesses. Career attorneys who are less tech-savvy will need support from staff with these competencies.
With remote courtrooms becoming increasingly common – if not the norm in some areas of law and the country – an online law school is an ideal setting for real-world lawyer preparation. Communicating remotely with professors and classmates begets confidence in emerging lawyers and gets them into the habit of handling unexpected technical challenges and interacting with judges and litigants virtually.
Learn More about St. Francis
A great online law school sets up its students for success from day one, providing a stellar education not only in legal practice, but in the virtual platforms and tools needed to stand out in the field. If you think an online legal education is the right move for you, explore the St. Francis School of Law online JD program to see what it has to offer. Learn more at https://stfrancislaw.com/