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March 30, 2021

Court Via Video: Legal Conferencing Technology In Unusual Times



From The Courtroom To Zoom Rooms: Legal Proceedings During The Pandemic

It was the technical gaff heard round the world. In an attempt at participating in a legal hearing on Zoom, a Texas-based attorney unintentionally activated a filter and suddenly found himself sitting before the judge looking like a cat. Unable to turn it off, the lawyer assured the judge, “I’m here live, I’m not a cat,” and while that was certainly true, the moment spoke to the strangeness of the world we live in today.



For the past year, even the most formal interactions, including legal hearings, have taken place online, and this has led law firms to reevaluate their use of technology. Across various jurisdictions and at every level of our legal system, our courts have had to find secure and effective ways to make remote jurisprudence work.

Looking To Precedent

In order to understand how we are using remote conferencing technology to manage legal proceedings today, it’s helpful to first look at some of the more traditional ways these practices have been used. After all, while videoconferencing’s scope is much greater at present, it is regularly used for arraignments and bond hearings, as well as for some criminal court proceedings.

Though it is more common for those currently being held in jail to be transported to the courthouse, some jurisdictions choose to offer “video court” because it is less expensive and supposedly safer. However, there are concerns that, because of the technology used and the fact that the defendant is appearing from a jail, video court may be dehumanizing and may even compromise the defendant’s right to due process.

What these preexisting models demonstrate is that, although not the dominant approach to managing legal proceedings, video court is not an entirely new concept that needed to be invented during the pandemic. It was, however, reinvented in many ways, as the entire legal process became decentralized. Suddenly, instead of the defendant being the only remote party, all participants were arriving from separate locations, leading to new complications and the need to adopt new technology.

Pre-Court Connections

Another factor we need to examine in order to fully understand the implications of Zoom court are the steps that come before a case can even arrive in the courtroom. While it may seem as though the world has been put on hold, new legal proceedings are being initiated every day, and it’s important for wronged parties to be able to pursue justice in a timely manner. That means, for example, individuals who need to make a personal injury claim should still contact a lawyer promptly and make appropriate arrangements to meet with them, including holding a video consultation. Often there is a statute of limitations on complaints, and these can be quite short on personal injury claims.

It’s not just individuals filing new claims who are handling all of their pre-court concerns via videoconferencing. In fact, such persons working with lawyers in private practice are relatively privileged compared to those who have been made to address serious criminal issues with a public defender via computers that may not be secure.

Public defenders typically spend huge amounts of time visiting clients in jail for confidential meetings, but as jails became hotspots for the spread of COVID-19, their already limited interactions – fueled by heavy caseloads – were further restricted by technology. Returning to the above concerns that video court may represent a constitutional issue, such conditions could lead to claims that defendants experienced ineffective assistance of counsel down the road.

Improving The Process

While everyone hopes that courts will resume functioning normally in the next few months, we also know that once we’ve adopted new technology it becomes hard to go backwards. That means that, in addition to evaluating issues of fairness and access, we need to consider a variety of technical issues implicated in the use of videoconferencing for legal proceedings. One way to do that is by approaching such technology the same way we have here – by looking at how we used videoconferencing before the pandemic.

Many court systems had standards for videoconferencing pre-pandemic, including the US Court of Federal Claims. Their earlier guidelines were fairly stringent and may represent a good model for proper use of videoconferencing going forward.

These guidelines include only using enterprise video conferencing technology in order to ensure security, requiring technical staff at the remote location be on hand, and requiring a minimum of a month’s notice and permission from the judge or special master. Such rigorous standards allow judges to restrict video-based court proceedings to times when they are absolutely critical and can be carried out appropriately, rather than simply for convenience or cost savings.

Other factors that we’ll need to consider in order to address the use of video conferencing for legal purposes include, in particular, communications between attorneys and their clients. Once the pandemic is no longer an issue, courts might consider having defendants and their legal teams together at a remote location when choosing video court. This could protect important communications and improve the quality of the defense, compared to the way video court is often executed now.

Finally, the number of legal proceedings performed via videoconference during the past year may represent a valuable test group for bias within this system. Do individuals whose cases are tried via videoconference have worse outcomes (more guilty verdicts, longer sentences) than materially similar cases tried fully in the courtroom? Evaluating cases for such differences could help advocates make a better case for whether or not video courts should be widely used, or if they put vulnerable individuals at greater risk.

When used in legal settings, video conferencing software is much more than a tool of convenience or a means of communication. It’s intended to facilitate the delivery of high-stakes services and protect people’s legal rights, and it’s unclear whether such platforms always measure up.

Sure, if the biggest problem the courts ever encountered was a lawyer who accidentally appeared to be a cat, that would be one thing, but what we continue to see is that, although we may have the basic tools to support legal proceedings in abnormal times, whether those tools allow those depending on them to fully participate in the justice system is still up for debate.



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