Virtual feedback on remote court proceedings — a judge’s perspective
In the face of an unprecedented pandemic, remote court appearances by video, once an outlier event, have now become the norm. While courts used to conduct a few proceedings in which parties appeared from non-court locations — such as prisoners attending arraignments from jail — the other participants, including the judge and court personnel, were present in the courtroom. Now, however, no one — not even the judge — is actually in a courtroom. Instead, virtual appearances by parties and judges located in a multitude of locations are joined together on one video display. Not long ago, no one would have thought this possible, but most electronic devices today are not only portable but equipped with microphones and cameras, thus enabling simulcasting of video and voice to other devices. Use of video conferencing applications such as Zoom, Microsoft Teams, Google Meet, and others are now common. And so the court system, at least as far as nonjury matters and appeals go, continues to operate despite obstacles of pandemic proportions.
Of course, many questions remain. This unprecedented situation has fallen upon us suddenly, and we were neither fully prepared for it nor do we know how much longer it will continue. Do we need a short-term fix for a temporary problem or are we in the middle of a new, evolving paradigm? In this new world, some legal traditions are gone. There is no “all rise,” no crossing the bar to enter the well, and no traditional handshake between lawyers. And rather than driving to the courthouse and find a parking space, you wake up, grab your coffee, park yourself in front of your computer, tablet, or smart phone, and enter a virtual courtroom.
We are fortunate to be living in a time when technology makes such remote conferencing possible, but there are no commonly understood rules for this situation. Therefore, we find ourselves improvising — adapting our current behavior to “fit” within this emerging technological landscape.
Over 50 years ago, Marshall McLuhan suggested that as our ways of doing things change, particularly through the use of technology, we begin to realize the social implications of the particular medium used. Marshall McLuhan, Understanding Media: The Extensions of Man 1 (McGraw-Hill 1964). He suggested that characteristics of the medium itself may have an impact on the content as perceived by the audience. Hence, for example, McLuhan described television as a “cool” medium because it demands more interaction and involvement on the part of the audience than a “hot” medium, such as radio. Id. at 22-25. In its simplest form, McLuhan’s reference to different media types is used to connote a belief that the media form itself can “massage” the viewer or listener into reacting either with explosive gusto, as a call to arms, when audio is the form of transmission, or simply with toned down calmness as in a dispassionate observer, when television is the form of transmission.
But what does this mean when applied to our new virtual legal arena? How do the characteristics of remote videoconferencing impact the content of legal proceedings? In my view, videoconferencing has actually enhanced the presentation of legal argument in several ways. For example, if one attorney tries to interrupt or talk over his opponent, the judge can now simply mute the interrupting attorney’s microphone. And virtual safety is real — trial judges and bailiffs need not worry about litigants engaging in intimidation tactics or domestic violence during or after conclusion of the case, and there is obviously immunity to the transmission of any virus.
In other ways, however, videoconferencing has resulted in a decline in professionalism. In the short time that the courts have been using this technology, judges have witnessed some negative, not so virtual, side effects — forgetting that you should not stand up if you chose not to don pants that day; forgetting to secure your pets and tots who might produce disrupting background noise; or forgetting to pick a location unaffected by other distractions, such as a flushing toilet. These types of characteristics of the videoconferencing medium may well have unintended impacts — some more negative than others — on the content of the presentation as perceived by the court. The exact effects of which are not yet fully known.
At the appellate level, our challenges have been few. From what I have observed, parties continue to display appropriate courtroom decorum; and as long as the technology cooperates, virtual oral arguments have not been much different from in-person oral arguments. I have also observed one benefit: Inappropriate displays of righteous indignation seem to have cooled off, perhaps because such demeanor does not translate well to the small screen. In this respect, the “cooler” medium of “television” seems to have resulted in cooler heads, which is a good thing. And although appropriate courtroom decorum is still necessary, I, for one, have no qualms with lawyers drinking their morning brew while displaying a background video feed of their office or library, keeping in mind that the proceedings are being publicly aired; solemnity of court proceedings still matters.
I hope that the legal community returns to a “new normal” soon, but until then, virtual participants would be well served to keep the above observations in mind. So, as the saying goes, I will see you “in court”— wherever that may happen to be.
Examples of this that come to mind are the infamous Kennedy/Nixon television debates of 1960 and the War of the Worlds radio transmission spoof by Orson Welles on the Mercury Theater broadcast in 1938.
Judge Craig C. Villanti was appointment to the Second District Court of Appeal in February 2003 by Gov. Jeb Bush. Judge Villanti has served on Florida Bar Committees for Civil and Criminal Procedure and chaired a Bar Grievance Committee.