India develops rules for live-streaming court proceedings

The E-Committee of the Supreme Court of India has developed a set of draft rules for live-streaming and recording court proceedings. The draft rules are open for public comment through June 30.

The draft rules exclude a number of case types, including many related to family law, gender-based violence, and cases which “in the opinion of the Bench may provoke enmity amongst communities likely to result in a breach of law and order.” Parties will also have a chance to object to livestreaming in advance.

Federal cases take about a year to resolve on average — but don’t read too much into that average

The Juris Lab has a nice, approachable statistical overview of federal civil case disposition over the past twenty years. It notes that the “average” case takes about 344 days from filing to termination, although that number varies widely depending on case type, jurisdiction, and nature of disposition. (Cases ending in a trial verdict take another year to resolve on average.)

The oveview does not attempt to account for all the variation in disposition time, and does not even mention obvious factors like judicial vacancies, complex procedural settings like MDLs, the influence of ADR on filings, CJRA-style reporting pressure, or settlement pressure. But it is still very useful.

I have only recently come across The Juris Lab, which aims to wed legal issues with big data. It seems like a promising site, and worth checking out on a regular basis.

Montana Republicans increase political pressure on state supreme court

Republican officials in Montana, who declared open season on their own judicial system earlier this year, fired a new salvo at the courts late last week. State Attorney General Austin Knudsen requested that the entire state supreme court recuse itself in a case involving a legislative subpoena of internal court documents.

In March, Governor Greg Gianforte signed into law a bill that would eliminate the state’s Judicial Nomination Commission, and allow the governor to fill judicial vacancies directly. Several weeks ago, the Republican legislature issued a subpoena to the state court administrator, seeking internal emails and other court documents (Including an internal poll) in which state trial judges allegedly expressed opinions on the constitutionality of that legislation. The court administrator asked the state supreme court to quash the subpoena, and Chief Justice Mike McGrath recused himself from that determination because he had lobbied the governor not to sign the bill. The remaining six members of the state supreme court quashed those subpoena in mid-April, pending a further hearing.

The AG now asserts that all members of the supreme court are directly conflicted from participating in any future hearing on the issue, because they would be ruling on access to their own internal documents. The justices’ continued participation in the case constitutes, in the AG’s words, “not merely the appearance of impropriety. This is actual impropriety.”

At first glance, state Republicans have laid a trap for the judiciary worthy of a cartoon villain. If the remaining justices recuse in order to avoid the appearance of impropriety, the Republicans will challenge any replacement judges on same grounds until they find judges that they feel will rule in their favor. On the other hand, if the justices decline to recuse themselves, they will face continued allegations of bias and impropriety, and will come under heavy political pressure to allow the subpoena to go forward.

Never mind that the allegations of impropriety appear to have absolutely no merit. None of the six justices on the court have spoken in any official public capacity about the subpoenas or the pending legislation. But that is beside the point: the real purpose of the recusal motion is to turn public opinion against the courts by painting the judiciary as hopelessly biased.

There is a way out of this trap, but it will require several careful steps.

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Alaska courts hit by cyberattack

Alaska’s court system was hit by a malware attack this week. The problem was caught quickly, which prevented significant damage. Nevertheless, certain public features on the court system’s website–including the ability to search court cases and view Zoom hearings–were temporarily taken offline.

The situation is reminiscent of the Solar Winds cyberattack that hit the federal courts earlier thisyear, as well as the ransomware attack that affected the Texas court system last May.

The lesson: whether you wear a robe, a suit, or elastic pants to work, give thanks to your IT Department today.

Post-COVID, an expanded toolbox for the courts

What will court proceedings look like once the coronivirus pandemic has run its course and society reopens in earnest? Already, courthouses are reopening for jury trials and hearings — a critical step for transparency and due proces. But as Judge Jack Zouhary explains at the IAALS Blog, videoconferencing is not going away. Rather, the courts will likely use videoconferencing for appropriate proceedings — everything from status conferences to settlement discussions.

The expectation of continued videoconferencing is welcome, but it is just the beginning of a larger transformation. The ongoing ability to access the courts through Zoom raises important questions about recording hearings, public transparency, the use of video for purposes of judicial performance evaluation and appeal, and so on. Put differently, new challenges are on the horizon. In the meantime, we are witnessing the true birth of America’s twenty-first century court system.

Minnesota’s federal court will continue with Zoom trials even after COVID

In an interview with Law360, Chief Judge John Tunheim of the U.S. District Court for the District of Minnesota said that his district will continue with civil trials over Zoom even after the coronavirus pandemic no longer makes them necessary. A snippet of the interview:

Our plan at this point is to resume jury trials, and in-person hearings to the extent necessary, on May 3. All of our staff will be vaccinated and beyond the two-week period following the second shot, so we think that by May 1 we should be in pretty good shape for jurors coming in.

I do plan to continue, and urge our other judges to continue, to do as many hearings on Zoom as possible. It’s worked really, really well, and we’re still not in a position where we want a lot of people coming into the courthouse.

I think using Zoom is a very effective tool for bench trials. For jury trials it’s a little more complicated, as we know. But we have a backlog of civil cases that we’re probably not going to get to right away because of the criminal case backlog. We are, for the time being, using only two courtrooms, one in Minneapolis, one in St. Paul, both with substantial amounts of plexiglass. Only using two courtrooms makes it hard to catch up.

I expect to see much more along these lines in the coming weeks and months.

Are Supreme Court amicus briefs posing a transparency problem?

That’s the question raised in this excellent Wall Street Journal piece by Jess Bravin. He reports that the number of amicus briefs filed with the Supreme Court has risen dramatically in recent years, with many of the briefs coming from opaque interest groups. Current Supreme Court rules only require that an amicus brief disclose whether a party or its lawyer funded the brief, or whether anyone else outside the named party contributed to its preparation. But this leaves plenty of room for little-known groups to file briefs, which may carry outsized influence with the Court.

Senator Sheldon Whitehouse (D-RI) is pushing for greater transparency in amicus briefs. I have criticized Senator Whitehouse routinely on this blog for his often perverse behaviors toward the federal courts, but on this issue we agree: greater transparency would benefit everyone.

Still, the courts would be better off modifying the policy themselves, rather than sitting back and allowing Whitehouse and his compatriots to force a legislative solution.

A nice primer on how federal funding reaches state and local courts

Pew Charitable Trusts has a very informative interview with American University’s Karen Lash about how to leverage federal pass-through funding to improve state and local civil justice systems. It’s a useful read for anyone who wants to better understand how federal spending trickles down to local entities.

Today’s COVID responses can improve tomorrow’s judicial performance evaluations

That’s the main thrust of my latest guest post at the IAALS blog. Forced to adopt a wide range of technological resources during the pandemic, courts systems are now better situated to use that technology to improve surveys, observe judicial behavior, and communicate wih the public.

How will virtual trials affect the appellate 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.