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.
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.
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.
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 primary defendant in a major patent case pending in the U.S. District Court for the District of Delaware has requested a delay of its scheduled trial due to concerns about conducting an in-person trial while COVID-19 rages on.
3G Licensing sued LG Electronics and others more than four years ago, alleging infringement of U.S. Patent No. 6,212,662. The patent concerns a method and devices for detecting transmission errors in data streams. Trial is scheduled for April, but in a letter to the court LG’s counsel worried about the ability to get a representative jury in the midst of a pandemic.
Courts have struggled to deal with trials during the coronvirus surge, with most delaying in-person trials or attempting to conduct them over video. Notwithstanding tireless efforts to assure due process and transparency for all parties, reactions to the videoconferenced trials have been mixed. At some point this year, courts should return in earnest to in-person trials (and will likely have a serious backlog to deal with). But it’s not fully clear whether that moment will come as soon as April.
The Colorado Springs Gazette has a terrific short interview with the state’s Chief Justice, Brian Boatright, on a wide variety of issues related to court operations and interdependence. Here is a taste:
[Q]: Is there any change during the COVID-19 era that you believe the Supreme Court couls permanently incorporate into its work post-pandemic?
Boatright: I believe that we will incorporate the practice of allowing attorneys to make oral argument remotely in certain circumstances. The pandemic has taught us that oral arguments can be efficient and effective wheh done virtually. I expect that attorneys who previously has to travel significant distances to present their arguments will want to take advantage of that option. Hopefully, that flexibility will reduce costs for their clients.
Chief Justice Boatright also discusses experiential diversity on the court, the role of collegiality, and the benefits of Colorado’s judicial selection system. It’s well worth a full read.
The Arizona court system is adopting a modern digital platform to help streamline virtual hearings, according to this story in Government Technology. The platform will include a digital evidence center capable of holding all relevant digital evidence — from police body cam footage to data collected from smartphones — in a single place. The platform will also allow digital evidence to be collected, digitized, and shared remotely.
The SolarWinds cybersecurity breach that affected several federal agencies and private tech companies last month apparently also infiltrated the federal court system, according to reports. The Administrative Office of the U.S. Courts yesterday announced additional safeguards to protect sensitive court records. According to the AO’s press release,
Under the new procedures announced today, highly sensitive court documents (HSDs) filed with federal courts will be accepted for filing in paper form or via a secure electronic device, such as a thumb drive, and stored in a secure stand-alone computer system. These sealed HSDs will not be uploaded to CM/ECF. This new practice will not change current policies regarding public access to court records, since sealed records are confidential and currently are not available to the public.
Shades of the cyberattack that hit the Texas courts earlier this year. That involved ransomware, but it equally exposed the courts’ vulnerabilities involving modern technology