Virtual Courts in a Post-COVID World

During my trial advocacy course, multiple judges and lawyers told us it was a good thing that we were learning to navigate a virtual courtroom. The lack of camaraderie was unfortunate, yes, but this is the future of law - and now, we were ahead of the curve. Their belief was echoed by my trusts and estates professor last week when he asked - can you execute a will through Zoom? Is the document valid if the testator and witnesses are connected via a computer screen, rather than in the same physical space?

Right now, the answer is “yes” - many states have issued temporary orders allowing legal actions, like will executions, to occur online. However, like my professors, most feel that there is nothing “temporary” about this situation. I’m inclined to agree, but that leaves me to wonder just how much of justice will stay virtual! The “pros” of moving courts online undeniably entail “cons,” and this post discusses a few of each.

ONLINE PROS

Flexibility

This almost goes without saying, but it’s far easier to schedule and cancel meetings without a physical space involved! This is especially true when parties are living in different states, or even different parts of the country. Car broke down? No worries. Cancelled or costly travel plans? No longer an issue. Your kiddo is sick? It’s okay - we can squeeze you in early next week, instead of next month. Additionally, the virtual world introduced online dispute resolution as a viable (and attractive) alternative to a courtroom. In the long term, virtual mediation could settle thousands of cases before they ever reach a judge - flexible, empowering, and far, far cheaper.

Efficiency

Speaking of cheaper…time is money, my friends! Remote proceedings eliminate time usually spent commuting, finding a parking spot, navigating the courthouse, and waiting your turn to face the judge. It also reduces down time for witnesses, who sometimes wait weeks to testify for just a few hours. In the case of expert witnesses, this could save literally thousands of dollars. And the use of online platforms has significantly increased the speed of court proceedings, something that the judge even noted during my own mock trial!

Accessibility

Online courts have also made justice more accessible than the real life version. First, people with inflexible schedules or hourly jobs can more easily join a virtual hearing than one held in person. Second, people in rural areas are finally getting the same judicial love as those in urban places. Third, and perhaps most importantly, parties are more likely to participate online because it’s more comfortable. Most people are used to video chatting on their phones and computers, whereas a courtroom is a scary, unfamiliar place. Each black Zoom box is the same size, so the usual power dynamics of court are eliminated, and participants generally call in from a familiar setting. As I saw firsthand, it is WAY less intimidating to video chat than appear physically before a judge!

ONLINE CONS

Accessibility

Yes, I know accessibility was on the pros list. But there’s a flip side to that coin - the need for good internet and working tech to participate in virtual justice. The Federal Communications Commission (FCC) estimates that 42 million Americans lack access to broadband Internet. That’s about 12.7% of the population (assuming a total of 328.2 mil Americans…Google, don’t fail me now). That is a LOT of people, and disproportionately represents minority populations. Additionally, courts will have to invest in the proper training and tech to sustain virtual justice, which could (and will!) prove very expensive.

Defendant Disadvantage

There is already significant evidence connecting virtual hearings to worse outcomes for defendants. A troubling 2010 study from Illinois (shout out to Cook County!) revealed that video bail hearings resulted in amounts that were 51% higher for virtual appearances than in-person appearances. That is NUTS (and resulted in Cook County being sued, and the end of that video bail system). But the concept remains the same. In-person testimony is simply more believable than virtual testimony, and many nuances of human behavior and oral delivery are lost on video.

Constitutionality Concerns

The most troubling questions plaguing virtual justice regard the constitutionality of those proceedings, and have caused many to lean away from online criminal trials. The Sixth Amendment protects criminal defendants (the people accused of a crime) in many ways, and there is a lot of doubt about whether a virtual proceeding holds up constitutionally in…court.

For one thing, the 6th A guarantees the defendant a right to appear in person in a “public trial” - but does a Microsoft Teams proceeding fulfill that guarantee? For another, defendants are guaranteed the assistance of counsel in their own defense. Communication between members of a party is obviously limited in an online setting (though things like breakout rooms may eliminate some of these concerns.) If a lawyer can’t consult with their client freely during an actual proceeding, is that client receiving constitutionally-sufficient assistance?

Finally, the 6th A also guarantees the defendant’s right to confront their accusers by seeing/hearing/questioning them live, in a courtroom. Is seeing someone in a Zoom box the same as confronting them in real life? Is witness testimony via video just as valuable for a factfinder as seeing that witness’s behavior in person?

These are all questions that have traditionally been answered “heck no,” but are constantly being reevaluated in light of COVID and a post-pandemic world.

BOTTOM LINE

The success of virtual courts over the past 12 months practically ensure that online proceedings are here to stay. That’s a huge, and FAST, revolution for a legal system that has largely resisted technological advances for 250 years! But even the most skeptical actors have acknowledged the advantages of virtual justice.

However, there’s an equally huge question about how far this precedent extends. Many practicing lawyers and judges feel that hearings, scheduling conferences, and even criminal pre-trial proceedings are great on Zoom; others feel that civil procedures (like divorce cases and traffic court) are also suited for the online environment. Still others see the virtual world as a revolution to criminal justice, but many continue to resist, citing many constitutional concerns. The only thing we know for sure is that the innovations sparked by the necessities of COVID aren’t going away - now, we have to figure out where to limit the technological transformation of American courts.