Virtual Court Putting Litigants at a Disadvantage?

The wonders of modern technology – in this case, Zoom and its videoconferencing ilk – have allowed the American court system to function even as society locks down for the coronavirus.

No doubt this is a good thing. But is there a negative side?

Now that we have several months of experience with virtual courts, maybe it's a good time to ask the question: How are they working out?

The answer, according to attorneys and litigants, is very much a mixed bag.

The Benefits of Virtual Courts

On the plus side, technology has kept the judicial system operating. Furthermore, many lawyers and judges credit it for improving efficiency in some areas.

“Virtual hearings are … revealing unique benefits to the judiciary," the National Center for State Courts noted, for example, in a recent report. “Attorneys can handle more hearings in a day when they don't have to travel between courthouses and courtrooms. Judges (once they are comfortable with the conferencing platform) can handle more cases in a day resulting in faster case dispositions."

NCSC also found that conferencing platforms provide free (or low-cost) automatic transcription that judges can more easily use to review testimony when writing their decisions.

Also, some judges say it has reduced conflict in court proceedings and made them less adversarial.

The Limitations of Virtual Courts

But lawyers and litigants also point to several problems.

Reporting on virtual courts, the website CNET found that people facing immigration proceedings have often been unable to have witnesses vouch for them.

Anna Byers, a senior attorney for the American Friends Service Committee, told CNET, “Pre-pandemic, witnesses are allowed to come to the courtroom as long as they have some form of ID. Post-pandemic, the courtroom is closed to everybody except court staff."

Courts are not allowing witnesses, she said, because their identities can't be verified virtually.

For criminal defendants, the situation is similar.

Under the confrontation clause, criminal defendants have a right to confront witnesses who are called against them. Does a video hearing meet that requirement?

“Many would argue that the virtual appearance does, as long as the person can be heard, can be seen, can be vigorously subjected to cross-examination on behalf of the defendant," Matt Wiese, chief prosecuting attorney in Marquette County, Michigan, told the news website Michigan Live. “And then there are others that say absolutely not, it has to be in person."

Defendants appearing in virtual courts are oftentimes behind bars in jail, an environment not conducive to making a good impression.

Virtual courts also make it difficult for attorneys and clients to engage in privileged communication during hearings.

Technical Limitations

Remote litigants might be hampered by bad equipment, weak internet connections, inexperience in using video cameras and lighting. Clearly, these limitations can put them at a disadvantage.

The Surveillance Technology Oversight Project recently examined this issue and released a comprehensive report that examines the technology of virtual courts and its effect on proceedings and fairness.

“Many litigants and defendants lack the hardware and/or internet connectivity to participate," S.T.O.P. reported. “There are also significant privacy threats from the integrated recording capability on many video conference platforms. Courts must account for the digital divide as well as security vulnerabilities, potential fraud, and the risk of manipulated audio/video in evaluating online courts."

S.T.O.P. identified several specific problems:

• Lawyer/client communication. How secure are the “breakout rooms" that Zoom purportedly provides for counsel/client meetings?
• Transmission of sensitive files. How is evidence to be introduced, authenticated, and stored in virtual courts?
• Errors handling technology. Connectivity issues and mistakes in sharing sensitive information pose risks of compromising a proceeding.

Loss of the 'Human Touch'

Anyone who's been to court knows that it's much like a theatrical presentation. There are usually two sides to a case, and the boundaries between the groups are clearly demarcated in an area a bit lower than the judge who sits elevated in the middle of the rear. There are numerous parties, many questions and responses. Facial expressions, body language, and demeanor can be critically important in determining the outcome of a case.

Most of that is missing in a virtual trial.

“In a live courtroom, it's an open space and body language is critically important and spacing is critically important," Alabama attorney Gar Blume told the news website, The Appeal, in describing a recent virtual court proceeding he was involved in. “Now the first set of things we started worrying about was, 'OK, where are we going to put the camera? Does it need to be up? Does it need to be down? Does it need to be on the side? How do we adjust the camera?'"

Blume, who's been practicing since 1978, concluded, “For 42 years it's been theater, and now it's film."

And that takes some getting used to.

Related Resources:

• Managing a Virtual Law Practice (FindLaw's Law Firm Management)
• How Courts Are Handling COVID-19 (FindLaw's Greedy Associates)
• Childcare and COVID-19: What Is Legal? (FindLaw's Law and Daily Life)