For over a year now, legal professionals around the world have been grappling with the implications of delayed justice for litigants while trying to balance the safety of jurors, court personnel, judges and lawyers. The COVID-19 pandemic has resulted in the revamping of court attendance as we know it. Zoom has been the primary, temporary solution utilized by courts to offset the inevitable delay. With judges managing overcrowded dockets and thousands of trials that are now behind schedule, Zoom has been helpful. But it does not come without its drawbacks. As with most things in law, arguments can be made for and against the use of Zoom for virtual court proceedings.
On the one hand, Zoom has helped reduce further delays by allowing lawyers and judges to conduct hearings and trials remotely. Zoom has expanded access to court proceedings, resulting in reduced bills for most hourly clients for simple motion-calendar hearings (although there are legitimate arguments against that, too), and it has allowed people to practice from the comfort of their own home (and in shorts, while wearing a shirt, tie and jacket).
On the other hand, Zoom has impacted many lawyers’ effective communication in person with not only the judge, but also with adversaries, witnesses, and the jurors themselves. As a civil trial lawyer, I am in the business of solving problems through effective communication, and effective communication is had by connecting with people. I have found it more difficult to connect with my audience, not to mention my challenges with getting into a much better rhythm when walking around instead of sitting down in front of a computer screen. Additionally, I cannot count the times lawyers have told me they have made fluid arguments where they felt their presentation was very effective and impactful, only to find out they were on mute, or their screen was frozen, or the judge, court reporter, or adversary dropped off the Zoom conference.
What about the litigants themselves? We may forget that not everyone is able to afford private counsel for their dispute; be it a landlord/tenant issue, an employment discrimination case or a civil rights case, without internet access or a cell phone, you, as a litigant, may not be able to attend civil court and prosecute/defend your case. Also, I have yet to see a party permitted to sit for deposition without video conference abilities or otherwise attend court without appearing physically on the screen. By contrast, litigants with internet and a cell phone do not have to skip work per se, and could still appear in court to resolve their issues. Again, as with most things, there are pros and cons.
Court officials around the country have spent months consulting epidemiologists and infectious disease specialists so that safety is kept paramount. At least in Florida, it appears the success rate of remote court proceedings has resulted in more positives than negatives. According to statistics in the Eleventh Judicial Circuit Court of Florida, there were more than 32,000 Zoom hearings between March 30th and June 30th, 2020. Well-respected judges such as Chief Judge Bertila Soto, Judge Beatrice Butchko and Judge Jennifer Bailey were instrumental in making this happen. Then, in July 2020, Florida held its first remote jury trial. Judge Soto was quoted as saying: “This is a really important day for this country, definitely for the state of Florida.” When speaking to the jury, she noted: “I know this isn’t going to be easy, but this is one of the highest duties you serve as American citizens.” Judge Soto continued: “I was moved as an American that so many of you were willing to do this, [and] I know that everyone in the state of Florida and the court system will be happy to see this going forward.” To echo Judge Soto’s comments, I too was proud to see not only that my hometown was the first circuit to hold Florida’s first remote jury trial, but also that a fellow Belen alumnus and classmate (’00) of mine, Andrew Vargas, was the Plaintiff’s lawyer in that trial.
Only you can judge whether Zoom has benefited you as a lawyer, litigant, witness or judge. Zoom has at least been a temporary solution to a complicated situation facing all of us today. Nevertheless, I would be remiss if I did not mention many of my peers’ sentiments, of which I share, who have noticed a decline in one’s overall self-efficacy caused by remaining in an office (or at home) more frequently than normal. You see, as trial lawyers, you get used to being in and out of court, taking depositions in person, attending hearings and interacting with colleagues while waiting for the judge to call your case. From one week to the next, it was all shut down, and we were faced with learning to adapt to a new digital era where social interaction was no more (or at least severely curtailed). I am of the school of thought that remote, virtual proceedings should never wholly replace in-person proceedings. Body language, facial expressions and other nonverbal cues are lost or absent altogether when a hearing is held virtually.
A newfound reliance on technology could ease courts’ caseloads in the long term and potentially usher in a new era of digital justice that widens access to courts for more Americans. The primary challenge will be balancing the pros and cons.