By Dr. Ken Broda Bahm:
There are two theories fighting it out over what will happen once the pandemic fades. The first, — I’ll call it the “blip theory” — posits that we will simply go back to normal pre-pandemic times, with the lockdown’s aberrations being relegated to “I remember when…” stories that we’ll tell our grandchildren. The other theory — the “persistence theory” — suggests that we will never really get back to normal, and the adaptations we made were so strong that we will be dealing with both the reminders and the remainders for a long time. Even if you, like me, grit your teeth a little every time you hear the expression, “the new normal,” it might actually be real this time.
At least, as it relates to our civil courts, that is the takeaway from a recent ABA article, “Judges expect hybrid trial system after pandemic.” The conclusions, definitely on the “persistence theory” side, come from a panel hosted by the ABA Judicial Division on the future of post-pandemic jury trials. The consensus of the judges on the panel is that criminal trials will return quickly to in-person, both because of confrontation clause issues, as well as judges’ need for solemnity to match the high stakes. As U.S. District Judge Donald Graham noted, “If I’m going to give someone 20 years, I want them to be looking at me. I want to have direct contact as much as possible.”
Civil trials, however, are a different story: “Online hearings and trials are more likely to become the norm,” the article notes. Maricopa County Judge Pamela Gates, oral arguments are “going to be largely virtual.” The group also noted that courts are also likely to use remote technology far more routinely when dealing with witnesses coming in from another town.
Outside this panel, judges are following suit. Illinois Supreme Court Justice, Anne M. Burke, recently wrote to her colleagues, “While the effects of the pandemic are beginning to recede, remote court proceedings will not.” Framing technology as an issue of access to justice, she specifically mentions an example of a pro se litigant who was required to travel 50 miles for an appearance or be held in default, and cautioned courts against “stepping back from technology we fought hard to learn and use.” She argues that every court proceeding should be evaluated to determine whether remote appearance is appropriate. In this post, I will share a few implications of this anticipated hybrid trial system.
Challenges Signal the Need for Adaptation, not Retreat
Everyone agrees that there are still concerns and challenges with online trials. The ABA panelists note that many problems have been expected or observed during the recent experiments with online trials. The group shared concerns over jury pool representative, coached or intimidated witnesses, as well as distracted jurors and witnesses — all the concerns we’ve been hearing during the year and counting of lockdown. But, even as there are concerns, there is also a strong case for adaptation where it makes sense in dealing with the backlog. The panelists appear to have treated none of these concerns as a bar, but rather as a reason courts and practitioners should be conscious and aware.
Judges Need Standing Orders
At this point, it might be time to suggest that the days of “Building the plane as we’re flying it” ought to be coming to an end. Instead, let’s just fly it, based on the design and plan that is already set. So this is something that every court across the U.S. should be addressing. On the panel, USDC Judge Donald Graham noted that, at minimum, judges should issue standing orders to cover the full scope of the when, whether, and how of virtual courtroom appearance and conduct.
The Whole Field Needs to Build Experience, Research, and Best Practices
To paraphrase Spiderman’s Uncle, with great change comes great responsibility. That creates a role for attorneys, courts, consultants, academics in actively — and quickly — studying and testing various remote adaptations to see what works and what doesn’t, and to also learn more about when it works and when it doesn’t, and most of all, how it works best. It is becoming clear that some aspects of a hybrid court system will be with us whether we like it or not. As a result, clear criteria for the effectiveness of remote appearances should be based on experience and research, not just on symbolism and habit.
_
______
Other Posts on Online Trials:
- Expect Attorney Resistance to Online Trial Innovations
- Online Trials: Expect Both Challenges and Opportunities
- The Distributed Courtroom: Don’t Assume the Trial Feels Any Less ‘Real’ When It Appears on Screens