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Remote proceeding shown to expand access

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'Fundamentally, on the question that we are constantly challenged with, which is cost and delay in civil court, remote participation has made a huge difference'

Judge Jennifer Bailey

Judge Jennifer Bailey

The court system’s unusually quick pivot to virtual technology, a pandemic necessity, is expanding access to justice, the latest research shows.

A Texas study by the National Center for State Courts credits remote hearings with increasing participation in civil and criminal cases — and reducing default judgments and failures to appear, respectively.

The trend has wider implications for the branch, researchers wrote.

“Such attention to enhanced procedural fairness has the benefit of better acceptance of court decisions, a more positive view of the courts, and greater compliance with court orders,” researchers wrote.

Eleventh Circuit Administrative Judge Jennifer Bailey, who helped design Florida’s first remote jury trial, praised the findings.

“We all owe Texas and the National Center for State Courts a debt of gratitude for this study,” Judge Bailey said. “People who couldn’t take off work, who didn’t have transportation, who didn’t have childcare, could participate in court for the first time and, as a result, we’re probably getting better justice in many different ways.”

The report is titled, “The Use of Remote Hearings in Texas State Courts: The Impact on Judicial Workload.”

Researchers asked judges in eight Texas jurisdictions to track their work time for a three-week period in April 2021, “to empirically investigate the implementation of remote hearings on the efficiency of judicial workload practices.”

The study showed that approximately 85% of hearings were conducted remotely. Researchers followed up the data collection by conducting a series of focus group meetings with 15 judges.

Researchers found that remote hearings also pose challenges.

Remote hearings take 34% longer than in-person hearings, a finding judges confirmed in the focus groups.

“The increased time is largely the result of technical issues, lack of preparation by parties, fewer default judgments due to the accessibility of attending hearings remotely, and increased numbers of parties in hearings,” the study notes.

The report recommends that courts assign “technical bailiffs” or additional court staff who would be “responsible for setting hearing links, scheduling parties, contacting parties before the hearings, and addressing technical issues that arise during remote hearings.”

Judge Bailey wholeheartedly agrees. Cases could be resolved more efficiently if judges devote their full attention to their jobs, she said. “Let’s face it, judges are not technologists,” she said. “And some lawyers are not as digitally facile as others.”

There are other potential drawbacks, Judge Bailey acknowledged.

“We think we’re holding more hearings, because people used to agree on issues just to avoid coming down to the courthouse,” she said. “That’s not happening anymore.”

Remote hearings are robbing beginning lawyers of the ability to observe their more experienced colleagues in action, she said.

“Young lawyers don’t have the opportunity they used to have at motion calendar to watch how judges work, and watch how other lawyers work, so there’s a loss of educational experience,” she said.

That can be mitigated by conducting “Zoom court” instead of individual remote hearings, Judge Bailey said.

Some lawyers complain that they miss the camaraderie of appearing in a live courtroom, and that there is less of an opportunity to duck into the hallway and strike a last-minute deal with opposing counsel.

But Judge Bailey isn’t persuaded.

“It’s called the duty to confer,” she said. “It shouldn’t take us arranging a play date with the lawyers through motion calendar or a live hearing for that to happen.”

The challenges aren’t insurmountable or reason to reverse course, Judge Bailey said.

Before remote hearings became routine, motion calendars were becoming “a tool for process exploitation, as opposed to justice,” Judge Bailey said.

“Fundamentally, on the question that we are constantly challenged with, which is cost and delay in civil court, remote participation has made a huge difference.”

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