A balance between in-person and virtual court proceedings should be established
While the COVID-19 pandemic ushered in a number of innovations to address the public health threat of the virus, one of the most significant temporary measures was the virtualization of court proceedings via virtual platforms. Initially thought to be a temporary adaptation to the challenges posed by the pandemic, there has been a growing interest in eliminating in-person courtroom proceedings (with the exception of jury trials) and adopting a near wholesale virtual system where motion calendar hearings, special appointment hearings, evidentiary hearings, non-jury trials, and other similar proceedings are all done through remote means. Remote proceedings have something to offer in terms of comfort and convenience, as the participants in remote proceedings can sit behind a desk and do not even have to leave their homes or offices to participate in a court hearing. There are undoubtedly financial benefits to the use of such a virtual system. However, that convenience and those savings are not without their cost. It is a cost borne by our justice system and its ability to provide effective representation to the citizens of our state. If all motion calendar hearings, special appointment hearings, and even evidentiary hearings are virtual, it is not difficult to envision a legal landscape in which new attorneys coming out of law school may never set foot in a courtroom. Experienced attorneys will also suffer the consequences of virtualized hearings and proceedings in that their courtrooms skills and techniques will become stale. For the young attorneys who have come into the profession during the pandemic, their professional growth has already suffered. The virtualization of courtroom proceedings threatens to permanently stunt the growth of this generation as well as future generations of attorneys. These same young attorneys without vital and necessary courtroom experience will go on to become the next generation of judges.
Since the nation’s founding, trial by jury has been called the crown jewel of our civil and criminal justice system. Enshrined into the United States Constitution as well as our Florida Constitution, the right to trial by jury remains one of the time-honored and defining elements of our democracy. In a jury trial, a party is represented by counsel who utilize skills of advocacy and professionalism. The attorneys in a trial summon all of their training in engaging in a physically and intellectually demanding performance that tests the attorney’s ability to not only put into action the evidentiary and procedural rules within the solemn confines of the courtroom but also to persuade through the act of public speaking in what is advocacy in its purest sense. When all of the parties in a trial are represented by competent and skilled counsel, the civil and criminal justice system is at its finest and honors the best aspects of our democratic traditions.
Despite the number of jury trials decreasing over the years, young attorneys have been able to gain training and refine their skills and techniques in courtroom presentation through in-person appearances at motion calendar hearings, special appointment hearings, and other courtroom proceedings. For example, in motion calendar hearings, attorneys have the opportunity to engage in oral advocacy within the courtroom and gain insight as to the techniques that facilitate effective and concise legal argument under time constraints in non-case dispositive matters. Similarly, in special appointment hearings, young attorneys have the opportunity to participate in more detailed and substantive oral argument and advocacy, which often includes evidentiary presentation. In the medical field, young doctors gain experience and skill through residency programs where they observe and train under more experienced practitioners. In the legal field, in-person courtroom proceedings, which include motion calendars, special appointment hearings, and evidentiary hearings, serve a similar function to residency programs. Through live and in-person courtroom proceedings, countless young attorneys have not only gained mentors in other attorneys and judges, but they have also gained experience, skill, and confidence in the art of advocacy, which has served and continues to serve the public. Further, through in-person courtroom proceedings, attorneys have the opportunity to network with colleagues and observe best practices in courtroom decorum and professionalism. The better a lawyer’s skill and the more professional the lawyer, the better the result for clients. Despite the success of the courtroom in training generations of attorneys, this training ground is now under the threat of obsolescence.
The virtualization of courtroom proceedings will also have a detrimental impact on the retention of our state court judges. Unlike the federal court system, our state court trial judges must stand for reelection by popular vote. The public often looks to the lawyers for guidance as to whether an incumbent judge meets the standards for temperament, demeanor, fairness, intellectual ability, and other qualities necessary to be a good jurist. Without in-person appearances, the lawyers will lack the necessary experience to be able to knowledgably comment on whether an incumbent judge should be reelected. Likewise, without in-person appearances, incumbent judges are handicapped by the limitations of the virtual experience, which inhibits a full revelation of a judge’s qualities. One can envision a future where great incumbent judges draw opposition and lose their election because of a lack of familiarity that lawyers can achieve only through in-person experiences in a courthouse setting. Moreover, good and dedicated lawyers will be loath to sacrifice their practice and seek a career on the bench knowing that they will be at a disadvantage when seeking reelection.
Undoubtedly, there is a place for the use of virtual or remote technology in courtroom proceedings. Virtual participation can serve much the same function as telephonic attendance has traditionally served for participants in courtroom hearings. Attorneys who cannot attend a hearing in person should be able to attend via virtual means. Our courtrooms and courthouses have the capability to adapt to the virtual world. Indeed, many jurisdictions throughout Florida have used significant tax-payer expenditures to update and even build new and more modern courthouses with significant and substantial courtroom technology capabilities. Courtroom staff throughout courthouses in this state have become incredibly adept at using various forms of visual and audio technology to facilitate hearings and trials.
The preamble to the Rules of Professional Conduct states that: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” To cast aside the traditions of courtroom proceedings, which are defined by live in-person advocacy within the chambers and courtrooms of our state, is to sacrifice the quality of our legal system and the administration of justice in exchange for comfort, convenience, and financial considerations. As referenced in the Oath of Admission to The Florida Bar, lucre should never be the driving force in the practice of law and must always be subservient to the administration of justice and practicing with professionalism.
As a multi-generational trial law firm with a history of active service to the courts and the bar on a local, state, and national basis, we can envision the unintended consequence of harm to the lawyers, clients, and the system of justice if in-person courtroom proceedings are limited. The court advocacy system is time-honored, tested, and true. To exclusively virtualize it will spell the death knell of courtroom skill and professionalism. Ultimately, the lack of in-person hearings poses a grave threat to the administration of justice.
The solution lies in a careful balance between a one-dimensional virtual world and the three-dimensional real world. We call for the establishment of a hybrid system whereby the courtrooms remain available and open for in-person hearings should a lawyer so desire with the ability for a lawyer to appear virtually at hearings should that be their preference. Such a hybrid system ensures the continuation of a vibrant and strong bench and bar.
Edward R. Blumberg, Steven K. Deutsch, Cosme Caballero, and Beau Blumberg practice with Deutsch Blumberg & Caballero in Miami, which specializes in complex civil trial matters.