Tag: videoconferencing

Face mask requirements pose a new challenge as courts reopen

Courthouses around the country are slowly reopening, with a panoply of health and social distancing guidelines. One of the most basic rules is that everyone in the courthouse must wear a face mask — a wholly sensible approach from a public health perspective. But mandatory face coverings also pose interesting new challenges for lawyers, judges, and juries, because of our reliance on facial expressions to assess emotion and credibility.

Courts are awakening to the problem, and trying to develop creative ways to permit certain participants to uncover their faces while protecting public health. One possible solution is to conduct voir dire by videoconference.  Another is to cover witness and jury boxes with clear plexiglass, an admittedly second-best solution. As one Texas judge noted,

in Harris County, the courts are already installing plexiglass to protect the clerks, court reporters and bailiffs, who sit in high-traffic areas of courtrooms.

“I joke our courtrooms are going to look like a hockey rink,” he said. “We’re not putting plexiglass up around the jury box, because we haven’t figured out how we are going to conduct the jury trials. This is an issue that’s causing a lot of concern, because people sitting in the jury box are sitting shoulder-to-shoulder.”

Whatever the solution, the courtrooms will certainly feel different for a while.

Texas holds first Zoom jury trial

Yesterday, Texas held the first jury trial to be conducted exclusively through Zoom videoconferencing. The one-day summary jury trial was also livestreamed on YouTube.

This represents a major development, given that every other jurisdiction has simply postponed jury trials until courthouses reopen.  And judges are increasingly opening to the idea of remote trials in some form. On the other hand, some judges remain steadfastly opposed to trials outside the physical courtroom, and with courthouses beginning to reopen in the coming weeks, it remains to be seen how common videoconference trials will become.

Another look at state courts handling the COVID crisis

This story nicely illustrates how the New York court system absorbed the initial blow of coronavirus-related closings, and is now slowly reopening its civil docket via videoconference. The story is probably not an unusual one for state courts in this unusual time, but it seems worth logging some of them here for posterity.

Federal court will conduct three-week patent trial via Zoom

A federal judge in the Eastern District of Virginia has ordered a patent infringement trial to proceed as scheduled on May 6. The entire trial will be conducted through the Zoom videoconferencing platform. It is expected to take about three weeks.

Plaintiff Centripetal Networks, Inc. alleges that Cisco Systems is infringing five of its patents for network technology. The case was filed in early 2018.

Cisco opposed the Zoom trial, arguing first that it would expose its proprietary technology to the public, and second that if the trial were to go forward via videoconference, it would be safer to hold it through Webex rather than Zoom. Cisco owns the Webex platform. The court rejected both arguments.

Earlier this month, a Texas state court held a one-day bench trial via Zoom. But this is a much more complex case, involving multiple claims, patents, and witnesses. If it proves successful, it may open the door to many more bench trials being conducted remotely. If the court and parties encounter major technical glitches, however, it may set back the movement for remote trials considerably.

COVID-19 and the courts: Where we are and where we might be going

A glance at the recent developments, and what to look for in the future.

It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.

Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”

The latest on state appellate arguments by videoconference

This Law.com article has a nice summary of where state appellate courts stand on videoconferencing in the wake of the coronavirus pandemic. It focuses on courts in Georgia, but usefully points out where other states are in the process as well.

Judges face a new challenge: half-dressed lawyers on Zoom

The coronavirus crisis and consequent social distancing has spurred many courts to move their hearings to videoconference. In light of the circumstances, some courts have relaxed certain formalities for online hearings, including the donning of judicial robes. This is a sensible practice, especially since judges already take on a slightly more relaxed feel when meeting with counsel in chambers, or otherwise outside the courtroom.

But some judges in Florida are finding that stay-at-home casualness is affecting lawyers’ professionalism a bit more starkly:

Broward circuit judge Dennis Bailey described some of what they’re seeing from the bench.

“It is remarkable how many ATTORNEYS appear inappropriately on camera,” Bailey wrote in a letter posted to the Weston Bar Associated website. “We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.

“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

It would never occur to me in a million years to stop dressing professionally for a court hearing. It’s one thing to abandon complete formality (like a robe or a suit) in unusual circumstances like these. But it’s something altogether different to choose not to wear a shirt. Good grief.

What does a court hearing by videoconference look like? Here’s an example.

Kudos to the Miami Herald for posting this story on the first Zoom hearing in a criminal case in the Miami-Dade court system. Most interestingly, the story includes an edited video of the hearing, in which the judge sat in the courtroom, the prosecutor on her home patio, and the primary witness in the front seat of his police SUV.

It is reassuring to see that the justice system is continuing to operate relatively smoothly under difficult circumstances. It is also comforting to observe how seriously some courts are taking their ongoing responsibility to provide transparent and accessible justice.

Judicial Conference authorizes federal courts to hold certain criminal proceedings electronically

Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.

The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”

This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.

Courts embracing video in wake of coronavirus pandemic

With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.

Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.

There will be much more to say in this story as it develops. Stay healthy and sane, everyone.