Thanks to all the readers who have come to The Independent Third Branch since our founding in late 2017. The start of 2021 has seen a surge in readership and subscribers, for which I am humbled and deeply thankful.
Please look around while you’re here, subscribe for email updates, and check back regularly for more discussion of courts and the judicial process.
That’s the question posed in this excellent article from Law360. A snippet:
Lawyers who engage in virtual trials need to anticipate that eventuality and do everything they can to minimize errors that can occur because of technology, as well as preserve their objections properly and quickly during virtual proceedings, [attorney Carl] Guthrie said.
“We should always be one step ahead and prepared for what happens … if an appellate court does look at it,” he said.
Courts that have been broadcasting their proceedings usually include a warning that recording is prohibited, but those warnings aren’t always heeded. One example is the recent viral video of the lawyer who was unable to remove a cat filter and told a court, “I’m not a cat.” The video preserving that moment included in black and white font a prohibition against recording.
But more broadly, Guthrie said that in virtual proceedings, evidentiary gaffes are some of the easiest to make — and can be the most damaging. Accidentally showing exhibits to jurors before they’ve been admitted by the judge, for example, is an easily reversible error, he noted.
Virtual hearings and trials are assuredly here to stay, at least in some form, after the pandemic subsides. It’s good that lawyers and judges are getting out in front of these issues.
Bloomberg Law reports that while some state courts have reopened their courtrooms to live trials, most people called for jury duty are not showing up. In California Superior Court in San Diego, only 5% of those receiving a jury summons actually came to court on their appointed day.
It’s not that courthouses are inherently dangerous, or likely super-spreader locations. Indeed, courts nationwide have made every effort to insure juror safety, and — as importantly — to make jurors feel safe. Massachusetts, for example, has temporarily reduced the jury size from twelve to six, and has installed so much plexiglass in courthouses that, according to Chief Justice of the Trial Courts Paula Carey, some jurors felt safer in the courthouse than at the grocery store.
Still, this is going to be a slow climb back to normalcy. The length of the pandemic has conditioned our brains to think differently about being in enclosed areas with others, and even after we hit herd immunity, it will be a while before we can loosen up again. To keep the docket moving, courts should think about hybrid models, using both live and video components, even after the pandemic subsides.
The proposed legislation would increase all judicial salaries by $30,000/year, with additional automatic increases beginning in 2027. Interestingly, the bill came from the supreme court itself, as Nevada permits government entities other than the legislature to propose legislation.
West Virginia is one of the few states that has no intermediate appellate court, meaning that its state supreme court faces a more congested, mandatory docket. Lawmakers have periodically proposed adding a new court, but without success.
The effort has begun again: the West Virginia Appellate Reorganization Act was introduced in the state’s senate judiciary committee this week.
Intermediate appellate courts cost money and demand infrastructure, but they also make a lot of sense from the standpoint of the administration of justice. Some lawmakers are optimistic that this will be the year.
After last month’s revelation that the federal court system was among the victims of the Solar Winds cyberhack, leaving thousands of sensitive documents in the hands of Russian hackers, members of Congress are now demanding answers about the extent of the fallout. As one story notes:
Senators Richard Blumenthal, Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Chris Coons, Mazie Hirono, and Cory Booker all signed on to a letter to the chief information officer at the Department of Justice and associate director of the administrative office of the U.S. Courts on Jan. 20 demanding a hearing on the changes and the potential access of court documents by the hackers.
“We are alarmed at the potential large-scale breach of sensitive and confident records and communications held by the DOJ and AO, and write to urgently request information about the impact and the steps being taken to mitigate the threat of this intrusion,” the senators wrote.
It’s not immediately clear to me why all of the signatories are Democratic senators. Perhaps it’s more pointless partisanship from a deeply dysfunctional Senate Judiciary Committee. But cybersecurity for the courts should be a bipartisan concern, and one can only hope that it will be treated as such.
The Administrative Office of the U.S. Courts has alraedy announced a plan to maintain sensitive filings on paper for the foreseeable future. We’ll see what develops in the coming weeks.
My law school classmate Seth Barrett Tillman, who has become a prominent voice in the legal academy on both sides of the Atlantic, has proposed a series of transparency reforms for the Irish courts.
The proposal includes open access to the parties’ briefs and filings, and a searchable database of notices of appeal.
These are worthwhile ideas, and demonstrate how a relatively modest investment in technology can pay significant dividends for access to justice and public confidence in the courts.
The viral sensation of the week is this video from a virtual hearing in a Texas state court:
The apparent backstory is that the lawyer’s secretary sometimes brings her children to the office, and one of them was using the office computer and installed the cat filter without telling anyone. And we can all relate: just two days ago my young son was using my computer for a Zoom playdate, and that evening I logged into my class from what appeared to be low-earth orbit. (Fortunately, I was able to switch the background pretty quickly.)
Still, I love how the judge handled the situation. Faced with an absurd and unexpected event, he showed extraordinary patience and grace — in fact, it was the judge himself who guided the lawyer through the steps of removing the filter. Moreover, the judge’s behavior was exactly what we should expect of judges. The fact that his dignified handling of the matter has gone viral may have the marginal benefit of reminding the public that courts are overwhelmingly serious, professional, and dignified places.
Kudos to Judge Bauer, and all involved, for injecting professionalism into a moment of absurdity.
The new administration is borrowing from Trump’s playbook, not Obama’s.
Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.
Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.
Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”
A strange development in West Virginia. State judge Charles King passed away last month, and Governor Jim Justice is charged with appointing his replacement. Interviews will be taking place this week. At the time of his death, Judge King was presiding over a lawsuit in which the Governor was the defendant. The new appointee will take the reins of that suit. Put differently, the Governor will literally be picking the judge in his own case.
While it is common for governors to temporarily fill vacant seats on the bench so that the courts remain at full strength, this situation is plainly awkward. It is all the more so because of the efforts in the mid-2000s of Massey Coal Company to heavily finance the election of Brent Benjamin to the state supreme court; Benjamin would later cast the deciding vote in Massey’s favor in a major case pending before that court.
Governor Justice must carry out his appointment responsibilities, but he would be well-served by including extra transparency in the process — for his sake, the new judge’s sake, and the sake of long-term public confidence in the state judiciary.