As the pandemic winds down, courts are shifting to a hybrid approach that incorporates remote with live proceedings. Jon David Kelley of Kirkland says virtual courts can expand access to justice, but care should be taken to maintain credible representation.
Virtual court proceedings are here to stay. What once seemed unthinkable to the litigator of 2019 is now a hallmark of the judicial process, and an inextricable part of nearly every civil lawsuit.
In many ways, this shift was an inevitable and even logical outworking of a profession that specializes in creative problem-solving. In the face of a pandemic that prohibited in-person contact, practitioners and courts proved versatile and willing to adapt to a format that allowed the system to move forward.
While virtual proceedings undoubtedly greased the gears of justice that otherwise might have stalled during the pandemic, the use of such proceedings are no longer a necessity. As a result, the legal community is grappling with the novel question of how best to use virtual proceedings when they’re no longer required.
The North Star for any civil litigator is ethical and effective client representation. A sustainable path forward should thus incorporate the best of what remote technology has to offer without compromising the efficacy of that representation. In this sense, remote technology can be a double-edged sword—the very convenience it allows can occasionally lead to less effective representation.
This moment offers an important opportunity to reflect on the pros and cons of remote proceedings in civil litigation: to implement what works, reject the rest, and guide the legal profession into a future where remote technology works to expand access to justice without jeopardizing effective legal representation.
Short-Term Necessity vs. Long-Term Remedy
A sustainable path forward begins by admitting that virtual proceedings are not ideal in every situation. Over the last several years, experience makes clear that remote technology includes the significant potential downside of distractions and interruptions. Remote proceedings pose other more fundamental problems by constraining a lawyer’s ability to persuasively tell his client’s story.
Effective litigators are effective storytellers. The art of persuasion lies in an advocate’s ability to tell a convincing and compelling story to the fact finder. The fact finder, in turn, assesses the credibility of that story through the perceived integrity of the lawyer and each examined witness.
With this in mind, remote technology creates at least two problems for the advocate: First, engaging virtually in oral argument provides an irresistible temptation for some to read from a script. Eyes slightly off camera, lawyers might passively read their arguments in a monotonous tone, devoid of passion and spontaneity, and frequently oblivious to any feedback.
Second, remote proceedings make it increasingly difficult for the fact finder to assess the credibility of witness testimony based on verbal content, as well as non-verbal communication, intonation, and other less-obvious cues.
Remote proceedings are rarely able to convey these subtle messages, making credibility harder to assess and verdicts more challenging to render. Live testimony offers certain advantages that a virtual setup cannot replace.
A Sustainable Path Forward
The last few years indicate that virtual proceedings are likely to provide the most benefit in cases on opposite ends of the spectrum: highly complex cases involving multiple parties, witnesses, and experts, and small-dollar disputes that do not require the full panoply of resources. Employing remote technology in these cases is almost certain to save money, time, and resources.
The advantages of employing remote technology often increase with the complexity of the case and number of parties. Complex multi-district disputes provide a prescient example. There, a party may face the deposition of witnesses across multiple jurisdictions where certain logistical difficulties and duplicative questioning are almost unavoidable.
With remote technology, a party can cross-notice any deposition and ensure coordination across cases and jurisdictions. This may significantly reduce the number of depositions, decrease travel needs and costs, increase efficiencies and coordination, and decrease the burden on a witness and the client.
While attending hearings and trial-related proceedings in person is optimal, each party might feel differently. For this reason, the ideal approach may be to allow for optionality through a protective order that defaults to in-person depositions, hearings, and other case-related proceedings, but permits any party to participate remotely if they choose.
Similarly, less-complex civil cases may prove ideal for remote proceedings. This is especially true for matters surrounding essential areas of life, such as personal safety, emergency child custody matters, and proceedings that affect the health of people affected by Covid-19.
In fact, Zoom dedicates an entire section of its website to virtual trials, recommending that administrative hearings—like traffic tickets—as well as traditionally tense divorce proceedings “are the perfect candidate for virtual court hearings.”
While the optimal use of remote technology may not yet be entirely clear, experience increasingly suggests the implementation of a commonsense hybrid approach that combines the best of both virtual and in-person proceedings.
In these ideal cases, virtual proceedings make room for convenience while magnifying the impact of effective advocacy.