What is the right balance between in-person and remote proceedings?
'The level of formality in a courtroom is not just an empty tradition. I believe it actually creates a self-effecting framework for collegial and professional behavior'
Concerned about the erosion of professionalism, advocacy skills, and respect for judicial authority, some judges and lawyers are calling for more discussion about the proper role of remote technology.
The debate pits remote technology’s speed, cost-efficiency, and expanded access against the integrity and decorum of in-person proceedings that have long been the hallmarks of the judicial system.
“Even though the values are in conflict, it’s not that either value is wrong,” said Second Circuit Chief Judge Jonathan Sjostrom. “The values of remote appearances are real, and the values of in-person proceedings are real, and it’s a real judgment call.”
Veteran Jacksonville trial attorney Thomas Bishop says he agrees that there are “circumstances where remote proceedings are appropriate,” but he says the lure of convenience should never trump the “powerful presumption of the superiority of in-person proceedings.”
“The level of formality in a courtroom is not just an empty tradition,” Bishop said. “I believe it actually creates a self-effecting framework for collegial and professional behavior.”
The debate comes as the courts are transitioning to normal operations and eager to tackle a projected 1-million case backlog.
A June 4 administrative order by Chief Justice Charles Canady stated that “trial court proceedings shall continue to be remotely conducted, as appropriate, to facilitate the efficient and expeditious processing of cases.”
The order allowed chief judges to begin dropping mask and distancing requirements by June 21, and no later than August 2. The courts are at somewhat of a turning point in their response to the COVID-19 pandemic, Judge Sjostrom said.
“We have a phased-in transition back toward the chief judge getting out of the business of mandating how the judges run their courtrooms,” he said. “By August 2, each individual judge is going to be doing their scheduling, and each individual judge is going to be making a judgment about what can be done in person and what can’t be done in person.”
In his June 16 administrative order, Sixth Judicial Circuit Chief Judge Anthony Rondolino wrote that “for hundreds of years, in-person court hearings have generally been the most effective and efficient method for conducting judicial proceedings” and “in-person remains the preferred method of adjudicating matters important enough to require judicial intervention.”
Judge Rondolino’s administrative order implements the Supreme Court’s instructions to give judges in the Sixth Circuit discretion to use remote proceedings, under certain circumstances.
But Judge Rondolino says he’s concerned that the increased reliance on videoconferencing will have a corrosive effect on the third branch. Compared with the executive branch and law enforcement agencies, judges have relatively little power to enforce their authority, Judge Rondolino says.
“What backs up the trial judge’s pronouncements in court, and the signature on orders, is the perception about the court’s authority and powers,” he said. “There is a reason various societies with judicial systems include signs and symbols reinforcing this perception.”
Zoom hearings send a different signal, Judge Rondolino says.
“The judge’s robe, the elevated bench, the impressive courtroom, the great state seal on the wall and the bailiff saying, ‘All rise,’ — all this is part of an age old formula designed to inculcate respect for authority and a willingness to comply,” he said. “Becoming talking heads on a TV screen, conjured up with little fanfare or inconvenience, totally erodes this vital aspect of our system.”
Meanwhile, the Rules of General Practice and Judicial Administration Committee is crafting proposed amendments to Rule 2.530 (Technology).
On June 11, the committee was scheduled to weigh final approval of proposed revisions to the rule that incoming Chair Sandy Solomon described as a general guide for remote testimony and appearances in court cases.
“If you don’t have another rule in another [procedural rule] set that tells you how to do it, this is how it’s done, and these are the presumptions on who has to file what, and what the standard of review is by the trial judge,” he said.
The committee ultimately decided to send the proposal back to the Liaison Subcommittee after some committee members expressed concerns about the details.
The proposed revisions provided that for non-evidentiary hearings, remote technology will presumably be allowed in proceedings shorter than 30 minutes or less, Solomon said. Appellate, criminal, or juvenile proceedings were excluded because they have special considerations or their own standards.
The proposal required parties seeking to present remote testimony in evidentiary hearings to file a motion prior to the hearing and show good cause. Factors to be considered included the value of the case, the location of the witness, the value of the testimony, the need to see the demeanor of the witness, and the “potential for unfair surprise.”
Some committee members asked whether the rule should require a judge to approve a motion for the use of remote technology, and whether in some matters, such as small claims, a judge should be able to order the use of remote technology without a request.
The Liaison Subcommittee will report on the proposal in October.
What About New Lawyers?
In a recent online News column, veteran Miami lawyer and former Florida Bar President Edward Blumberg described a “growing interest” in “adopting a near wholesale virtual system” for motion calendar hearings, special appointment hearings, evidentiary hearings, non-jury trials, and other similar proceedings.
There is a place for remote proceedings, Blumberg said, but he warned that such a scenario could exact a toll, especially on the next generation of legal advocates.
“[I]t is not difficult to envision a legal landscape in which new attorneys coming out of law school may never set foot in a courtroom,” Blumberg said. “Experienced attorneys will also suffer…in that their courtroom skills and techniques would become stale.”
Blumberg worries the professional growth of young attorneys who have come into the profession during the pandemic has already suffered.
“The virtualization of courtroom proceedings threatens to permanently stunt the growth of this generation as well as future generations of attorneys,” he said. “These same young attorneys without vital and necessary courtroom experience will go on to become the next generation of judges.”
Bishop says he believes that remote proceedings could be appropriate for “custodial” or less impactful hearings, such as docket call or docket sounding.
But remote proceedings should only be used for consequential matters when they are needed to overcome a hardship, Bishop said.
“I draw the line at a matter where the court has to weigh the arguments of counsel on a substantive matter, or the testimony of witnesses, or the appearances of a pro se on a substantive matter, but again, always with a safety outlet,” he said. “If it’s a hardship on a litigant or a lawyer, the trial judges should have the discretion. I just don’t want the discretion to flip to the presumption.”
Remote proceedings are increasingly attractive in a “convenience-driven” society, but the law has always been — and should remain — different, Bishop said.
“Candidly, there’s very little that’s convenient about the law,” he said. “By design, it is a process that moves carefully and calls for sacrifices. There’s a lot at stake.”
Remote proceedings diminish a participant’s ability to accurately gauge subtle facial expressions, or even the mood of the courtroom, Bishop said.
“There is an intensely human dynamic in a court proceeding by design,” he said. “I think that the process was designed to gather everyone in a room as we would for any important decision we make, and to weigh, not just what people say, but how they say it, not just what the arguments are, but how they’re put.”
The Need for Remote Hearings
Judge Sjostrom says he agrees that in-person proceedings are superior, but he said the advantages of remote proceedings are more apparent in a geographically diverse jurisdiction like the Second Circuit.
“The Second Circuit has six counties, including three of the five-smallest counties in the state by population, and including two of the most remote counties from any urban area,” he said. “Lawyers getting there from out of town, that has to be something that they take into account when they are trying to represent their clients economically.”
“Anecdotally,” it appears that more poor and low-income residents have been able to attend remote proceedings, Judge Sjostrom said.
“Lots of people have cell phones, but they don’t have cars,” he said.
The latest Supreme Court administrative order forbids the use of remote proceedings for Baker Act or other mental-health hearings, but the court may reconsider that decision, Judge Sjostrom said.
“Just as a practical matter, I hope they do,” he said. “It was something that I think we were able to do effectively remotely for the patients, and it really did give us a lot of flexibility.”
Remote proceedings have drawbacks, Judge Sjostrom acknowledges, and decorum sometimes suffers.
“I have had witnesses and lawyers appearing from their boats,” he said.
A recent Zoom legal seminar — not a court hearing — sponsored by a local bar association was “hijacked,” Judge Sjostrom said.
“I guess I would call it a little bit of Zoom vandalism, suddenly we were seeing inappropriate images on all of our screens,” he said.
But in the final analysis, Judge Sjostrom said, he would prefer not to “throw out the baby with the bathwater” as the courts return to more traditional proceedings.
“My position is that we should be encouraged to consider the value of supporting both in-person and remote proceedings, and I am for as much discretion as possible with the individual judge.”