videoconferencing – The Interdependent Third Branch

Texas expands virtual court program for criminal cases

The Texas Department of Criminal Justice has announced plans to expand remote court appearances for inmates using videoconferencing technology. Rather than being transported to county courthouses for hearings and other legal proceedings, inmates would appear before the court using secure video.

Video hearings offer much in the way of efficiency and even safety, relieving the state of the burden of having to transport parties to and from the courthouse. But they still need to provide all the constitutional guarantees of due process. If the video technology is unreliable or if there is a real sense that not being in the courthouse deprives a party of his or her day in court, the program would need to be revisited.

These types of video hearings took off during the pandemic, and some states made the hearings available for public viewing on YouTube or their own websites. I watched a few during that period (mostly from Michigan), and the prisons offered inmates with a hearing a private, quiet space for the videoconference. If Texas can continue that tradition, this seems like a meaningful advance for all involved.

Videoconferencing as a (temporary) solution to the lack of court interpreters

This is an interesting article about the shortage of interpreters in the South Dakota court system. The state only has about 80 qualified interpreters, and only a fraction of them speak the primary languages of non-English-speaking litigants: Spanish, Arabic, Swahili, and Dinka.

The lack of qualified interpreters presents a serious access to justice issue. It can delay cases or even corrupt proceedings if the interpreter translates incorrectly. Moreover, interpreters must have familiarity with the technical language of court proceedings in order to be effective.

The article suggests one technology-based solution: bringing in interpreters remotely through videoconferencing. This approach has its own challenges, including technical glitches and lag time, but it may be the best available response at the moment. Still, it only seems a matter of time before high-quality, reliable AI could be used for simultaneous courtroom translation.

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.

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.

About that cat video…

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.

Defendant seeks delay of major patent trial due to COVID

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.

Colorado’s Chief Justice on court operations, judicial selection, and experiential diversity

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.

Chief Justice issues 2020 Year End Report

Per longstanding tradition, while you were anxiously coaxing 2020 into oblivion last night, the Chief Justice quietly issued his Year-End Report on the Federal Judiciary. Also per tradition, this year’s report features more musty anecdotes about the courts, this time focused (predictably) on pandemics. The Chief Justice congratulates the entire court system on its turn to video hearings and trials in the wake of the COVID-19 spread.

Kudos are indeed in order for reacting relatively swiftly, but I will save my formal congratulations for when the federal courts embrace technology with foresight and a commitment to transparency. Here’s an area where the federal courts could learn much from their state counterparts, if they are willing.