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To deal with COVID-19, the 11th Circuit is Zooming ahead

Senior Editor Top Stories

Judge Jennifer BaileyThe 11th Circuit is flickering back to life — Zoom hearing by Zoom hearing — a few short weeks after the deadly COVID-19 pandemic brought one of the nation’s busiest courts systems to an abrupt halt.

In an April 3 interview, 11th Circuit Administrative Judge Jennifer Bailey said judges in the state’s hardest-hit and most populous county have been conducting Zoom hearings for more than a week.

“It’s a remarkable accomplishment and I have to give huge credit to our judges,” she said. “Three weeks ago, we had the occasional telephone conference, and now we have judges conducting their entire dockets via video and phone, and it is a remarkable leap forward.”

The day before, the circuit’s Criminal Division conducted its first major proceeding — an Arthur hearing — via remote technology.

In the criminal hearing, Circuit Judge Miguel de la O presided in the courtroom, staring into a laptop camera, while the defendant, a former teacher accused of having sex with an underaged student, appeared via a video link from a jail conference room.

The defense attorney appeared in the courtroom, taking special precautions with the court microphone, while the prosecutor appeared via remote technology from her home patio. Witnesses testified remotely via video and phone links, including an investigator, who testified from the front seat of his sport utility vehicle.

Hearings and other judicial proceedings — one Northwest Florida court conducted a bench trial using remote technology — have been taking place throughout Florida’s 20 judicial circuits via remote technology since the pandemic struck.

Judge Bailey said much of the credit belongs to Chief Justice Charles Canady and the Office of State Courts Administrator for swiftly negotiating Zoom licensing agreements. She also applauds an “invisible army” of technicians with CITS, the Court Information Technology System, who serve the 11th Circuit.

“Our tech team has been extraordinary, they have stood up this system at a moment’s notice, they have trouble shot it, they have created training, they’re conducting webinars every day,” she said. “There’s a lot that goes into conducting a court system that nobody ever sees.”

At about the same time that the Supreme Court issued a March 13 administrative order suspending jury trials and most in-person court proceedings, the 11th Circuit implemented a “stand down.”

Judge Bailey said she and her colleagues, judicial assistants, court administrators, and staff used the time to create training materials, conduct twice-daily training webinars and meld the circuit’s CourtMAP online case management and access system to the Zoom platform.

The training appears to have paid off, Judge Bailey said. Civil hearings are being conducted successfully, with only a few technical difficulties, and none have been “Zoom bombed.”

“Not yet,” she said. “We are trying to make sure that we appropriately inform judges about privacy settings, and breakout rooms, and moving people in and out, and what to do when someone Zoom bombs you.”

The threat is real. A Hillsborough County teacher reported that a Zoom classroom session in late March was interrupted by a man who displayed his genitals. A South Florida legislator’s recent Zoom press conference with a senior state administrator was cancelled after it was interrupted by hackers shouting obscenities.

Zoom recently reported hosting more than 200 million daily conferences. It remains an optimal platform for court systems because it can accommodate telephone conferencing for litigants who don’t have access to video devices, Judge Bailey said.

Unlike other vendors, who charge up to $60 per session, Zoom is free, Judge Bailey said.

That’s an important consideration at a time when pro se litigants are likely to be unemployed, and solo practitioners and small firms are increasingly worried about cash flow, she said.

“Zoom solves a lot of access to justice problems that other potential vendors that charge don’t,” she said. “For years, we’ve talked about the importance of cost and delay in civil litigation, and in many regards, remote appearance has huge potential to solve those problems.”

So far, the 11th Circuit’s Civil Division is using Zoom for less procedurally complex hearings, but that will change, Judge Bailey said.

“We’re ramping up with calendars, special sets, probably we’re moving to bench-type trials and evidentiary hearings shortly, but there’s a lot of details with how you do that,” she said. “How does the clerk participate? How do court reporters participate? How do interpreters participate? When you break down the business processes of one of the busiest dockets in the country, it is really complicated.”

Dade County Bar Association President Gilbert Squires said he integrated Zoom into his private international arbitration and litigation practice long ago, and the Dade County Bar Association recently began using Zoom for board meetings.

“It’s a matter of ensuring that we properly plan to have the meeting or the hearing,” Squires said. “You can communicate in the background with court reporters and counsel.”

Squires said Judge Bailey deserves high praise for the way she’s handled the crisis, and the 11th Circuit has been well served by her technical expertise. Judge Bailey chaired a Supreme Court taskforce on the mortgage foreclosure crisis in 2009, and is serving on another that is studying technology and court efficiency.

Miami attorney Jane Muir, a sole practitioner, said Judge Bailey has been creative when it comes to making the greatest use of scarce court resources. For example, Muir said, Bailey held motion calendars in stages throughout the morning instead of all at once, making it easier for lawyers to accommodate school schedules, traffic snarls, and limited courthouse parking.

“Judge Bailey has been really incredible about implementing new processes that take advantage of the court resources in a more efficient way,” Muir said.

Judge Bailey said the crisis, while painful, has enormous potential to speed the evolution to a more efficient court system.

“Anybody that doesn’t think that this is going to be a game changer is delusional,” she said.

Meanwhile, lawyers will have to work more cooperatively in the video environment to assure procedural fairness, she said.

“This may mark a return to a level of professionalism that had previously been deteriorating,” she said.

Judge Bailey is urging everyone to respect social-distancing mandates and heed the words of University of Chicago infectious disease specialist Dr. Emily Landon: “Without taking drastic measures, the healthy and optimistic among us will doom the vulnerable.”

“It doesn’t seem very important, when you’re sitting on your couch watching Netflix, that you’re saving the nation, but you are,” Judge Bailey said. “And by moving to the Zoom platform, the 11th Circuit is trying to do its part to save the nation from the coronavirus, by pushing out all the work that we can do onto a remote platform, so everyone can stay safe at home.”

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