By Dr. Ken Broda Bahm:
It was just about a year ago that we all started hearing about a novel virus originating in China. A few months later, as American courts ground to a halt, or moved forward haltingly, it started to create the backlog of cases that continues to grow. Now, every court system in the country is facing significant backlogs. With vaccination dragging its heels, and new variants of the novel coronavirus complicating the picture, it is likely that when courts do start up again, it will be with restricted in-person activities and fewer courtrooms. The space and resources that they do have will likely be concentrated on criminal cases to accommodate Sixth Amendment issues. So, for the time being, we can expect the civil trial backlog to only grow.
What is to be done about that going forward? The Online Courtroom Project has been researching the question of whether part of the answer is to be found in moving civil jury trials online. Drawing from a number of pilot projects, the team (that I am a part of) held an online two-day demonstration trial over the summer that tested all elements of trial, including jury selection, side-bars, objections, testimony, openings and closings, deliberation, and feedback from all actors. A comprehensive report was produced that both describes and evaluates the experience. With the perspective of a few months since the project wrapped, I believe that six conclusions are particularly relevant for court administrators looking to consider online trials in order to address the backlog. I see these conclusions as durable in the sense that they will matter even after the pandemic is in the rear-view mirror, and may point to ways to improve court operations so that going to trial can be less of a barrier to litigants generally.
1. Meaningful Communication Can Be Achieved Easily Online
In the past year, most of us have dramatically built-up our web-conferencing experience, and come around to the view that good communication via a virtual conferencing platform is actually pretty easy. That was the experience with the Online Courtroom Project. Jurors were attentive and engaged, and found the deliberations smooth and vigorous. This ease of communication was also in evidence during voir dire. The Plaintiff’s attorney observed, “It seemed like the jurors were more relaxed and expressive than they usually are in a live courtroom. I was also able to see a lot more of their non-verbal information and reactions than I am often able to see in a courtroom.”
The jurors agreed, with one noting, “It was really nice being able to see the other jurors face-to-face. Usually we would be sitting side-by-side, not able to look at each other.” That same juror also noted that there was, “a newfound level of connection that you wouldn’t find in a brick and mortar courtroom.” Ninety percent reported that they felt connected to their fellow jurors during deliberations.
2. Greater Comfort and Candor Can Result From Online Trials
Given the courtroom’s historic role in serving as a crucible for discerning truth from falsehood and yielding a fair result, it is natural to fear that a virtual courtroom will result in discomfort or a lack of candid communication. However, experience with the format points in the other direction. In the exercise, the attorneys and the judge all reported that they felt the panelists were more candid in voir dire because they were speaking in the familiar environment of their own home. The camera itself seemed to quickly become an afterthought, as potential jurors spoke directly and, perhaps, less guardedly than they would have in the formal atmosphere of the courtroom. In addition, the attorneys noted that they felt that they were able to get additional insight on their audience from seeing them in their home settings.
3. Credibility Determinations Are as Good or Better
During testimony in the online trial, the “technical bailiff” adjusted settings so that the witness’ image was the largest one on the screen. All jurors reported that they were able to effectively see and hear during testimony. Some of the jurors recruited for the project had prior experience with in-person jury duty, and those jurors commented that they felt it was easier to judge witness credibility in an online setting because they had a closer and more direct view of the witness. As one noted, “It’s a lot easier to see nerves and unpreparedness when the people are filling your screen instead of several feet away.” Another mentioned, “I feel a lot more connection, and even [with] the witnesses because you are right there. You can really see their expressions.” The online platform, she added, “wasn’t a negative at all.”
4. Technological Barriers Are Surmountable
Anyone who has been through a trial knows that the process requires some patience: Delays occur, and you often have to wait a bit to make sure that things are in place. We may, however, have somewhat unrealistic expectations when it comes to technology. As the report observes, “While we have become accustomed to wait times in a normal courtroom procedure, we are more impatient when dealing with delays with technology or online events, such as the waiting for jurors to come back from breaks or for attorneys to find an exhibit.” As a result, it is a good idea to acclimate parties, jurors, witnesses, and observers to these delays and to urge patience, particularly on the technical issues.
One thing that we learned, however, is that nearly all technical issues can be addressed. For example, the team learned that bigger screens are a necessity: Laptops or tablets tend to work well, but phones do not provide enough space for clear viewing.
Another lesson was that all platforms have limitations. The Online Courtroom Project tested two platforms (Adobe Connect for day one and Zoom for day two), and while the second day supplied vastly better audio and video functioning, there were some technical issues on each day. Smooth functioning will likely come with the development of a conferencing platform that is customized to the specific needs of a court. For example, it should allow sign-ins and associated views based on the distinct roles of judge or court personnel, attorneys and legal teams, witnesses, jurors, and observers. Currently, there are no platforms designed specifically for this purpose but (take note, Cisco, Adobe, Zoom) there will be a bid advantage to whomever gets there first. Helpfully, the Online Courtroom Project has included on pages 68-69 of the report a specific list of features that the platform should have.
But ultimately, the off-the-shelf technology still worked. One hundred percent of the jurors reported that they were able to effectively handle the computer technology and would be willing to serve on a similar trial in the future.
5. Access May Be as Good or Better
A frequent top-of-head reaction to online trials is that they will exclude those without the technical resources to participate. During the pandemic, the response has often been that in-person trials will exclude a much larger swath of the population for health reasons. But even in post-pandemic times, there are reasons to believe that technological access is a solvable problem. Most households have already solved it: The report cites Pew research showing 90 percent of the population has a computer and 80 percent has broadband access. For those who don’t, the report notes, “Courts may have to consider providing computers and training for those who need them for purposes of the trial. Public schools have addressed this issue by providing equipment to students without sufficient resources.”
Setting the pandemic aside, it is also worth considering that online jury duty would be easier for potential jurors with travel or mobility limitations.
6. Online Questionnaires Are the Easy Call
The final durable lesson is that, whether trials move to an online space or not, the questionnaires should. With the vast majority of jurors having an email address or a number where they can receive texts, it is easier to distribute and collect online questionnaires prior to trial, which makes it possible for the attorneys and the court to actually use them effectively. The attorneys involved in the Online Courtroom Project’s demonstration say it allowed them to prepare more thoroughly for voir dire. For the court, it allowed centralized collection without a need to photocopy and distribute the results. It saves time while allowing the ability to focus and streamline oral voir dire and potentially to handle some hardships outside of court. Based on the social science, questionnaires filled out in the privacy of one’s home lead to greater candor as well. So if there is just one takeaway from the online trial experience it should be this: At least administer the questionnaires online.
Ultimately, the online trial is a reminder that justice is not about ceremony or a particular physical place. Instead, it is about a function: fair and rational dispute resolution. Throughout this pandemic, everything short of jury trial (hearings, bench trials, appeals, arbitrations, mediations) has been embraced in an online setting, largely without problems. Some feel that the line ought to be drawn at the jury trial, but the early experience so far shows that, with adaptation and patience, an online jury trial is both possible and in many ways advantageous.
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Other Posts on Online Trials:
- Expect Attorney Resistance to Online Trial Innovations
- Online Trials: Expect Both Challenges and Opportunities
- Plan for Online Jury Trials