ONLINE COURTS DURING THE PANDEMIC: RESEARCH AND QUESTIONS: LESSONS FROM TEXAS
The problems of keeping the courts going during a pandemic are universal and worldwide. Countries throughout the globe are getting to grips with the problems caused by remote hearings. Professor Elizabeth Thornburg from the Southern Methodist University has written a detailed paper on the experiences of the courts in Texas. The link to the research is here.
Professor Thornburg welcomes experience based reactions to her research and conclusions. There are many issues raised here which are of importance to the judicial system in any jurisdiction.
THE SCALE OF THE ISSUE
In case you didn’t know, Texas is a big state – 178% larger than the UK, and has a population of 29 million.
During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours.
“A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings “work”? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts?
The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence).”
“As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself improves.”
FROM A HUMAN STANDPOINT
“From a human standpoint, consider some snapshots: an adoption ceremony was witnessed by 75 people from around the world; an out-of-state witness was able to testify; a mother was able to participate in her hearing without having to give up a day’s pay; an arresting officer was able to appear by taking a few moments off rather than spending hours traveling and waiting to testify; a lawyer avoided two hours of travel for a fifteen minute hearing; another lawyer was able to work productively while in a Zoom waiting room instead of. sitting on the courtroom benches for docket call; a judge serving multiple rural counties saved hours that would have been spent driving among courthouses.”
YEARS AND YEARS OF CHANGE DONE IN A MATTER OF WEEKS
“It took years for Texas courts to set up and require a system of electronic filing; the transition to Zoom hearings on YouTube came almost overnight. It is unlikely that the court system would have chosen to test online hearings so broadly, and certainly not without months
of committee meetings, deliberation, and surveys of stakeholders. But what a silver lining: the need to use online meeting technology has demonstrated ways in which technology can increase access to justice and create efficiencies for all of the participants.”
WHEN DO WE NEED TO BE AT COURT “IN PERSON”
“It is more difficult to clearly define situations in which the human element demands the physical closeness provided by in-person hearings, or the formality and dignity of the actual courtroom. In considering this issue, it is important not to romanticize that experience, just as
it was important not to assume that witnesses have more ready access to justice at the courthouse. But it seems likely that there are times when the possibility of physical touch is important; times when necessary confrontations are more powerful in person; times when predictable bad behavior needs the threat of physical coercion to curtail; times when the ability to “read the room” based not just on individual faces is important; legal rites of passage when the physicality of a sense of community is important; and times when the architecture of the courthouse is needed to signal dignity and respect. Empirical proof of this effect would be difficult to obtain. Party requests for in-person hearings would be a marker of at least subjective belief that the values of being together outweigh issues of access and efficiency, so long as you could strip out requests based on habit, fear of technology, or an attempt to game the system”
WHAT HAPPENS WHEN WE GET BACK TO THE FUTURE?
“When the pandemic is no longer forcing the issue, there will be a tendency to reach for the familiar, to return to doing everything in person, at the courthouse. It does not have to be that way. These lessons should not be lost, and the courts can reach beyond “normal” — they can reach for better.”