When it comes to COVID-19, consequences such as quarantines and our new environment of social distancing abound. The spread of the Coronavirus has taken a toll on our nation; our state; our communities; and, unfortunately in some instances, the lives of our loved ones and friends. No one across the globe has been insulated from the monumental shift these circumstances have created in almost every aspect of our lives. From the tragic loss of life to skyrocketing unemployment to the different ways in which we shop and interact with each other, the world we live in now is very different from the one we experienced prior to March.
Our legal system is no exception, where we have witnessed something that many never thought possible in their wildest dreams: transition to an electronic, online judiciary. Judges—and most lawyers if we are being honest and introspective—are notoriously averse to change in the “process” when it relates specifically to technology. We are keen to hold on to the “if it ain’t broke don’t fix it” adage and affix ourselves to the greatest principle of all – keep it simple, stupid! And while there are certainly meritorious points of reasoning that support such restraint and caution when it comes to transitioning a system from paper to intangible megabytes of data, we must adjust to the times to remain relevant and effective.
This is a new world; there are new rules; and, like it or not, adjustments have been made. Instead of focusing on complaints, concerns, and potential negative effects of online hearings, let’s look at some of the positive aspects of conducting hearings and trials remotely using online video platforms like Zoom:
- Comfort: Very few individuals ever become truly comfortable in the courtroom – perhaps lifetime trial attorneys, some judges, and maybe a bailiff or two. The reality is that most people have increased levels of stress, anxiety, and agitation when they walk into a courtroom—this includes attorneys, not just their clients. The design of our courtroom intentionally seeks to create and bolster a perception of authority, from the waist-high wooden bar that separates spectators from participants to the elevated bench of the judge surrounded by court staff and uniformed bailiffs. But in the new world, participants get to sit in the comfort of their own living room, on their porch, or in their bedroom. And the idea of comfort is even more visceral in that there is no longer a need for clothing below the mid-abdomen—but I’m sure everyone is still wearing something more than just their skivvies down there… Right?
- Interaction: While it might seem like online hearings have the potential to create more distractions, there are far more distractions happening in an open courtroom than a Zoom call. I have often heard clients comment on a judge’s seeming distractibility (judges are like your second-grade teacher—they never seem to be watching and always have their back turned but they know every bit of mischief you are up to in the back of that classroom). In actuality, a hearing done via Zoom feels more personal, and the participants feel more connected and attentive as well. It probably has something to do with the unconscious psychological effect we experience when we are situated in front of a camera lens. Whether we perceive it or not, we become more aware of our appearance and the way in which we are perceived. This creates a sense of engagement more palpable than what you experience in a courtroom setting.
- Efficiency: One of the most daunting tasks a judge faces is managing their docket and clearing their caseload. That means that motion hearings and discovery disputes are often stacked on top of each other with the assumption that some cases will go away before their scheduled date and make space for the others. However, more frequent is the hearing that should only take ten minutes but ends up taking an hour and a half. During these situations, clients and attorneys can be left sitting in a courtroom, waiting their turn, for hours. When you fight traffic and deal with parking to get to the courthouse on time for your hearing, just to be postponed for hours and potentially receive a shorter hearing time due to a compressed judiciary schedule, it can be extremely frustrating and stressful. However, if your online hearing time runs late, at least you are waiting things out in the comfort of your home.
It is likely that we will continue to see matters handled electronically and online even in the years to come. As such, let’s take the optimistic route by focusing on the ways in which we have progressed during these trying times.