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Court Conference, Coronavirus No. 6

Electronic Courts

The federal Court system has taken the lead implementing electronic filing through the PACER system Public Access to Court Electronic Records | PACER: Federal Court Records. It is not the beautiful technology envisioned by Steve Jobs or the magic simplicity of Google search. It is an orderly system of filing and administering Court paperwork through electronic forms and docket management. The coronavirus pandemic has increased the utilization of electronic filing in areas that were previously paper only. It turns out that the Court has the ability to accept electronic filings and to administer those pleadings once submitted. Court has become the Court Conference. The adversarial system is on its heels. The Court Conference system wrangles out time wasting and eases the friction of the legacy court system.

Court Conference?

What the Court did not have is the mindset for Court Conference

and processes to get the papers or the electronic papers to the right people at the right time. The Courts are now forced to adapt paperwork sharing technology. During the coronavirus pandemic, the weaknesses of the Court’s processes were exposed. The Courts have done the best they can. However, judges did not have access to the paper files. The judge was sitting home. The law clerk was sitting somewhere else. Paperwork may be scanned in. Pages are missing or maybe the judge is struggling to read the exhibits. Justice is not well served when the Court does not have all of the proper information and evidence in hand. What was a motion became a disjointed Court Conference

…the weaknesses of the Court’s processes were exposed…

In hand now means in an elegant and intuitive electronic fashion. We must be fair and give judges who have operated as lawyers and members of the judiciary in paper only dockets. During the coronavirus pandemic, paper has not been disseminated because there is no one to disseminate the papers, there is no ability to make massive sets of copies and keep them organized and there is a fear that the coronavirus survives a long time on paper. End to end electronic filing, docketing and processing is within reach.

Workflow and the Court Conference

Workflow integration is critical to the rollout of video conferencing. The filing system, docketing system and the videoconferencing system needs to be an integrated symphony. Fortunately, this solution already exists. Corporations, governments and the healthcare industry are the leaders in this area.

Space and Time

Court buildings are centrally located, sturdy and serious buildings. Serious people resolve serious problems inside the Court building. Time spent in preparation for Court appearances and addressing legal matters consumes a higher volume of quantity and level of human cognitive bandwidth. Technology compresses all of that. Cloud servers host the New Court Conference system. The coronavirus pandemic has proved that the Court building is necessary for resolving only a small piece of the Court case. The need for significant spaces is gone. The Court Conference is a virtual event.

Lessons, again from the criminal justice system.

Inmates are released on an ankle bracelet. A transdermal alcohol detector can be added to the monitoring system. Rather than spend the vast sums necessary to incarcerate a non-violent offender, they are let out. Inmates are not free. They can perhaps stay within the four walls of their home. Some may have permissions for local travel to work and performance of errands during certain hours. The jail system does not need much space to house inmates and effectively monitor the offender’s activities. Courts have the same ability to eliminate the need for vast space. The implementation of video conferencing for many matters alleviates Court utilization issues and Court building utilization challenges. You simply do not need Courthouses with many individual Courtrooms. The Court Conference is conducted in the cloud.

Participants in the legacy Court system know that there is one unifying experience – wasted time. The Court system works behind the scenes. The Court system has no conscience about dragging loads of people into the Courthouse while the system does its thing in the back. Important work is being done by Court staff and judges.

Court Conference – Mindset Eliminates Waste

There is just no visibility to it and waiting around for your quick matter to be resolved while the Court system churns away is maddening. Time wasting is a thing of the past. Workflow integration, automated docketing and videoconferencing vast parts of Court cases alleviates time wasting in a dramatic fashion.

Coronavirus kills the Courts and the Courts are reborn with time and space efficiency – a system built on the Court Conference.

Technology and Court Customers

The Court system is not easily led by outside forces. It is a sturdy and consistent part of the functions of a thriving democracy. Courts do not tolerate much oversight or bullying from the executive and legislative branches. This also impacts the Court’s sensitivity to customer needs. In the realm of technology, the Court customers are equal partners. Fortunately, rolling out workflow integration and video conferencing is merely the Court system meeting with its customers. According to a June 2019 PEW Research Center mobile fact sheet, 81% of Americans have smartphones and 96% have mobile phones. Likewise PEW reports that 90% of Americans use the Internet.Demographics of Mobile Device Ownership and Adoption in the United States

The Courts need only ask its customers to utilize technology already in hand.

The Courts business customers have utilized smart technologies as a basic staple for many years. Clearly, the technology is in the hands of the vast majority of potential Court customers.

For the few that lack technology and a Court appearance is less than optimal, I propose implementing simple remote access points for secure Court participation through the VMR service described herein. Court participation rooms or testimony rooms can be easily established in rural areas and made accessible via under-utilised government buildings such as municipal buildings or libraries. The Court customer or witness without access to technology can participate in a video conference and workflow integration. The under-utlized government building inevitably has electric, furniture, lighting and internet access sufficient to enable critical testimony or Court appearances with the need to travel at great expense to a Courthouse.

Margaret Hagan, Director of the Stanford Legal Design Lab https://law.stanford.edu/directory/margaret-hagan/#:~:text=Margaret%20Hagan%20is%20the%20Director,more%20usable%2C%20useful%20%26%20engaging, reported her findings From fieldwork performed at the Santa Clara County Self Help Center in a medium.com article Doing User Research in the Courts on the Future of Access to Justice. https://medium.com/legal-design-and-innovation/doing-user-research-in-the-courts-on-the-future-of-access-to-justice-cb7a75dc3a4b

The key takeaways are that

When talking about where to put legal help, people chose public libraries in first place, Courthouses in second, and websites and phone texting were tied in third.

Some of the main takeaways from the interviews, around how we could improve user experience of Court are as follows:

(i) people like and seek “personalized” attention. Their main preferences revolve around the idea of tailored attention;

(ii) confidentiality and data storage are two of the main concerns when talking about these “personalized” solutions. People showed concerns regarding the level of protection and possible breaches of their websites;

(iii) impersonal solutions were the least valued. Showing general information in an organized way, e.g. flowcharts, although useful, does not address adequately people concerns about their cases;

(iv) overflowing of text messages and smaller data-plan packages with your phone carrier can go against the text message option — which tempered people’s excitement for messaging as an innovation.

(v) if it is not possible to personalize the system, improving understanding of how the self-help center works and how their processes go forward seems critical. Improving the self-help center website and the development of a form-filling software are the second best options.

Jurors

Jurors are the ultimate noncombatants in the Courthouse. They endure a ton of the pain for extrinsically little of the pleasure. They are pulled into Court by a semi-threatening notice. The consequence of their noncompliance includes threat of prosecution. Their life is interrupted oftentimes on short notice and via some confusing log on or phone-in and system.

Find your way

Jurors must find their way to the Courthouse and find their way to the juror muster point. There may be piles of people there. Jurors are then subjected to video presentations and/or lectures by the staff. It can be a noisily noisy and bustling place crowded and unpleasant. Jurors then have the apprehension about whether they will be selected, how long it will take and what impact will jury service have on the rest of their life commitments. They may or may not be eager to serve. They may also worry about the content of the trial. Is it something that will be of interest? Is it something the juror feels competent to adjudicate.? Will the other jurors drive you crazy?

Evolving Jury Procedures

Oral questions may be raised. Written questionnaires are provided. Jurors are trooped all over for voir dire, more preparatory words and directed to a particular bathroom or place to take a break. Jurors are herded together for part of the experience and herded in among the rest of the people in the Courthouse.

There may be a small stipend for jury service. Some may be paid by an employer, many will not be paid and either perform their jury service without pay or by burning precious personal time off. It is now a health and safety imperative for the Court system to limit the sheer number of people, especially jurors, entering and staying in the Courthouse at a time.

Fortunately, Court trail blazers are already experimenting with remote juries.

“In May 2020, (26) Collin County, Texas jurors checked in via video conference and 12 were empanelled – two panels of six jurors to adjudicate a one-day non-binding verdict. It was the first such experiment arising out of the coronavirus pandemic. District Judge Emily Miskel, who coordinated technology for the trial. “But I think there are many civil trials where parties might agree that this is a good way to resolve it given the uncertainty of when you’re ever going to get an in-person civil jury trial.” The Associated Press, Fortune, May 23, 2020. https://abcnews.go.com/Health/wireStory/texas-court-holds-us-jury-trial-videoconferencing-70825080

Remote Voir Dire

Conduct juror voir dire remotely. Why drag 100 people down to the Courthouse when the likelihood is that many will be excluded for cause or subject to peremptory challenges? It has always been an exercise in guesswork by trial lawyers in registering the impact of excluding a juror on the remaining jurors. Perhaps the neighboring juror was just getting comfortable because of a pleasant chat with the juror that was just excluded. Have you now rattled the remaining juror? The flip side of course is trial lawyer “spidey sense” that comes from watching and listening to a juror being questioned in voir dire and the reactions of the other jurors. That “spidey sense” will certainly be impacted by video conferences versus live voir dire.

Argument

“I attack ideas. I don’t attack people. Some very good people have some very bad ideas.” Justice Antonin Scalia

The United States Supreme Court limits argument to 30 minutes per side. Of course, the US Supreme Court is the highest Court in the land and the big boss of Courts. The justices certainly can expand the time if they find it necessary to complete a given matter. There is a rhythm to it: the petitioner goes first and the smart petitioners lawyers make the presentation and reserve time for rebuttal. But it is highly orderly and can be heard on the radio cases and on the Internet, after the arguments are concluded, not live, until the coronavirus hit.

The U.S. Supreme Court begins an extraordinary two weeks of oral arguments Monday. It will be the first time in history that the Court has allowed livestreaming of its audio and the first time that the Court is hearing arguments via telephone hookup instead of in the flesh.

Nina Totenberg, NPR. May 4, 2020. https://www.npr.org/2020/05/04/847785015/supreme-court-arguments-resume-but-with-a-twist

Many state Courts live stream their Supreme Court oral arguments. They follow a similar pattern.The petitioner goes first arguments previously briefed, answers questions and reserves time for rebuttal. The next party goes and follows a similar pattern.

At the trial level things are a little more hectic. There may not be one hour available for each Argument. The judge may need to be more active in dragging out and clarifying facts and positions relevant to moving a case along. Different pressures on different levels of Courts. Nonetheless, in utilizing telephonic and video conference argument, orderliness is key. Courts need to set simple but flexible rules so that the moving party has time and rebuttal time. The responding party has time and at the Court’s discretion rebuttal time. Set it up and run it so everyone knows the rules before they get to the Courtroom in person or electronically.

In larger video conferencing settings, participants are able to signal their desire to speak by typing in a request or pressing a certain icon that puts them in queue to speak and be heard. Orderly argument creates a clear record. One of the major goals and objectives of the trial Court is to make a clear record so that if a person feels aggrieved by the trial Court’s decision and appeal as possible. A “garbage” record at the trial Court level ties the hands of upper level Courts to determine what happens, determine whether a remand is appropriate or to simply reverse the entire decision. Garbled trial testimony and argument with multiple people speaking at once creates a garbled transcript and makes review nearly impossible.

Judge and Lawyer Tech Training

Courts are in the danger zone. Protocols for Court appearances, oral argument and trials have been developed over centuries. The entire Court system developed around physical appearances and Justice being administered at a particular place. That place also triggered a mindset. Institutional knowledge is bred into judges, Court staff and the lawyers that appear in front of them. When a lawyer or self-represented person presents a case to the Court in a manner that is inconsistent with custom and protocol, the record is confusing and the energy expended on the procedural can leave little energy for the substantive. Bad records can be created even when the judge sits on the usual bench, in the usual Courtroom and conducts business in the usual Chambers.

Coronavirus has driven the judges and Court staff out of the Court building.

There is no usual bench, Courtroom or Chambers. The judges are working outside of the comfortable rituals that marked their law school training, time as a practicing lawyer and experience as a judge. Nationwide, the response to these challenges has varied. Some states shut down until they figured out a way while others implemented a patchwork of technology on the fly. Some even implemented training four judges and Court staff. A few hours of training to re-program decades of experience. Some training is better than no training. Would you want your case to be the first one adjudicated by a judge just getting oriented to the flow of Technology? Do you want the judge to be figuring out how to handle exhibits, objections, side bars with unfamiliar technology? Traditions matter in the Courts and traditions contributed mightily toward the consistent administration of justice.

Bad presentations make for bad records

Lawyers are trained in traditional settings and programmed to maintain those traditions.

There is no plagiarism when it comes to lawyers pleadings – you are expected to copy and mimic the pleadings that have come before yours. The system thrives on Court submissions that fit within parameters set forth in Court rules, evidence rules, statutes and case law and most importantly, custom and tradition. One of the significant services that lawyers provide to their clients is guidance and immersion into the Court system. The lawyer tells the client when to stand and sit. The lawyer guides the client to the proper locations in the Court building and in the Courtroom. A lawyer provides the client with very basic training of the rhythms of a Court proceeding.

As much as the judges are feeling displaced and pushed away from their traditions, the lawyers feel the same. Lawyers want to put their client and witnesses at ease before they appear in Court or testify. A gentle face to face conversation with a bit of encouragement reminds clients that lawyers care about them as a live human being in addition to their case. When lawyers have little to no training and experience with the technology, presentations will be inconsistent and clumsy. Bad presentations make for bad records and bad judicial decision-making. Lawyers will need to be trained in the workflow products and video technology that will be implemented by the Courts. No one should be forced to expose their constitutional rights when neither their judge nor their lawyer has been trained and become comfortable with deployment of workflow and video technology.

Judges and lawyers need to become proficient

in managing Court breaks, side bars and facilitating attorney-client conferences. During the Court lockdown, I have needed to communicate with my client while on a multi-party Court conference call. The judge wanted an answer and I could not give it without consulting with my client. The judge told me “text him.” I complied because time was of the essence but frankly the result was bad communication between my client and I, and a loss of confidence on the part of the client that I would fully fight for that client. I could have told the judge I need to jump off the call and get back on. The risk was that we would not be reached again that day. I litigated an emergency child custody hearing. If I was together with my client we would have gone off the record, had a brief exchange and gotten the right answer. Training needs to focus on those critical aspects of the attorney-client relationship.

The Court owes a duty to the lawyers and the lawyers owe a duty to clients to afford that moment of “elasticity” that in person Court proceedings enjoyed in a remote or virtual Court setting.

Photo by Alex McCarthy on Unsplash