Trials and Hearings
There is some effort to move cases along including trials and hearings via video conferencing. Here is where my support becomes a bit tepid. Important, constitutionally protected events can be addressed in the video conference. As I write my law partner Maggie Moriarty has conducted a number of final adoption hearings via video conference. The children and their adoptive parents are home and safe and comfortable. Maggie is on video in a safe location and the Court staff and the judge will also be positioned for safety and effectiveness. That is a beautiful thing. Not requiring the adoptive families to drag themselves into the Courthouse through metal detectors is a wonderful thing. Adoptions have a rhythm to them and certainly the Court may have questions but those questions all geared toward approving an uncontested adoption. Perfect.
Contrast an uncontested adoption to a domestic violence final restraining order hearing. The stakes are extremely high. If a person is being abused, the full spectrum constitutional protection ought to be afforded the litigants. If the allegations are not viable and the dispute between the parties is more in the nature of a nonviolent family disagreement, the defendant deserves to have constitutional protection because the consequences of being hit with a domestic violence final restraining order are very severe including potential loss of employment, loss of the right to possess firearms, removal from your own home, estrangement from your children and a number of other significant consequences. It would be a great tragedy if in the sincere desire to move cases along and to give people confidence that Courts are open for business and that we dilute due process and bend the rule of law applies, that we conduct hearings that fail to meet the basic requirements of due process. Any matter that is hotly contested and credibility of witnesses as part of the Court’s calculus should be excluded from telephonic hearing. Video conferencing may be possible on a case-by-case basis.
I worry tremendously about the breakdown of witness integrity. For example a witness testifying in a trial or hearing via videoconference might have another phone or computer out of eye shot and be reading or hearing answers fed in real time. A witness can be prepared to give only and answers to every possible question. The witness need only convincingly read from the list. There can be another person in the room signaling answers. All of this would be out of eye shot of the adverse lawyer or party and the finders of fact. This is a complete disaster.
How will I enforce my order of sequestration against adverse witnesses? How will I know where they are? The other litigant and an adverse witness can be in two different rooms in the same house and yet communicating with one another. False backgrounds are in common usage on video conferences. The specter of canned or coached testimony is omnipresent via video conference.
“Flow carries within it delicious possibility. In the state, we are aligned with our core passion and, because of flow’s incredible impact on performance, expressing that passion to our utmost. Under normal conditions (playing chess, writing a report), this is empowering.”
Training a lawyer to effectively examine a witness during a trial or hearing is a matter of marrying technique with confidence in what emerges as a flow state. The technical can be achieved through video conferencing and best practices. Confidence may come in time, I’m not sure. I am really worried about the limitations on achieving Flow state between lawyers and witnesses. It is what retired Judge E. David Millard calls” giving the judge and jury the lantern – show them where you want to go.” It is not clear that flow state will be easily achieved through video conference trials. Video conferencing allows the lawyer to light the lantern but whether the light will guide the fact-finder will need to be assessed with the advantage of data and time.
The early returns regarding witness and party credibility via video conference have surprised me. Multiple Judges have shared with me that they believe that credibility can be properly assessed via video conference. They cite the fact that the person’s facial expressions can be closely studied and the camera is always on. My initial Instinct was that fact witness credibility needs to be determined in person. We have utilized videotape deposition testimony for decades. When the witness is a professional expert witness in an important area of medicine science, mathematics, finance or technology, that person’s videotaped testimony is fine. In those circumstances the lawyers had the opportunity to examine and cross-examine the witness and, in general those witnesses are not emotionally involved in the case. An expert witness may have a strong opinion about the why’s and wherefore’s of the expert analysis. Expert witnesses applied standards to the facts presented in the case. They may have a bit of passion but their recollection of events is not part of the test that must be passed at trial. Other witnesses may also be fine video conferencing candidates.
Police officers who take reports, other fact witnesses who are there just to offer authentication of evidence and clarify evidence that otherwise would speak for itself. When we get to the parties to the dispute and those that have a stake in the result, credibility is always at stake. Findings of credibility are critical for the judge and the jury. Those witnesses may need to be live. They deserve to be judged in the flesh and the other side deserves the right to cross-examine a real human to expose objective truth and peel away mere spin. If you have had the pleasure of being cross-examined by a skilled litigator you know that feeling entering the witness stand certain of your narrative and walking off wondering how you could have thought your story made any sense. That’s how credibility is tested and the right to test it is critical to due process.
I do not believe I am simply being sentimental in requiring more study on credibility. Frankly, as a litigator, I do not get to spend much time with the other side’s Witnesses before cross-examination. Seeing their body language moving around the Courthouse. Observing their demeanor around the Courtroom even before their direct examination is an enormous benefit to me. I had always assumed that judges like that part of the process. Merely having someone sit in front of a screen changes the human dynamic quite a bit.
I am also always concerned that a witness on video has access to resources or other people live or via technology to influence the video conference witness testimony. Not all Judges are sure that remote appearances are best and can replace in person witness testimony.
“Manistee Justice Court Judge Donald Watts told The Arizona Republic that the pandemic is a confusing time. The biggest change for Watts is not seeing many people in his Courtroom. Non-verbal communication can be helpful. As a judge, when people don’t necessarily tell you the whole story, it’s much easier to draw questions out of them if you can see them.”https://www.azcentral.com/story/news/local/phoenix/2020/07/06/covid-19-changes-maricopa-county-justice-courts/5357410002/
Coronavirus kills the Courts but fidelity to due process, the rule of law and search for reliable facts and evidence, lives on.
Judges love to handle cases, resolve legal issues and do that which they are trained to do. Judges spend a small minority of their working hours. Instead they juggle calendars, manage little staff fiefdoms, interact with Court staff in chambers and out of chambers. They spend a ton of time on administration, calendar management and even managing their own physical time and space. Optimizing means the judge’s time is spent hearing cases, reading files and making the best decisions possible. Those best decisions mean consistent decisions in the case and from judge to judge. Consistency between counties and Courts would breathe an enormous amount of confidence into the system, make the judge job tremendously attractive and fulfilling.
In theory, Court staff have the job of assisting the judges make excellent fair and consistent decisions. Court staff also have the job of getting the right papers and the right people in front of the right Court so that cases move with efficiency. They help to settle cases and the help to focus the Court resources on high-value activities. As I write that my spine tingled with excitement if only that were the case. In practice, Court staff’s job is to say “no.” “No” to accommodations of time and dates. The default is “no.” The eager member of the Court staff is perpetually vexed with answering this question: why take the risk? Approve and accommodation which might help move a case. If things go poorly, the Court staff takes the heat for bending protocol a decision that works beautifully gets lost in a sea of Court volume. There are just enough go-getters in the Court staff to keep things moving along.
From the Court customer perspective there is only one case. From the Court staff perspective there are hundreds of cases today and there will be more tomorrow. The Court customer who gets the wrong staff member on the wrong day and gets brushed off feels like the whole system is crooked and abusive. Optimizing Court staff means Court staff is there to serve the customer and enhance the judge’s ability to make substantive decisions. Protect the judges from bad papers, silly arguments, time wasting and the rigors of scheduling and space management. Customer service focused Court staff make the Court experience pleasant, as pleasant as the Court can be for the customer and optimizes for good judicial decisions.
Court staff must guide customers to resources such as online resources, the proper forms and in the greatly enhanced availability of advice from practitioners parens to be discussed just a moment and parens makes the experience of the customer in the day of the Court staff are one to the respected and brings both back were sensible out into the world with the right message. The Court is open to the people. You will get a fair shake by Court staff no matter who you are, what you look like or your level of resources. Court customer time will be valued. You will be required to be an educated consumer but we will make sure it is presented to you on a silver platter. The Courts are here to serve justice and fairness and it starts with a great customer service experience.
Few people want to be customers of the Courthouse. Everyone comes with preconceived notions of how Court will go. Some enter with a chip on their shoulder feeling extremely put upon by having to go to Court. They come in emotionally charged and ready to snap anything or anybody they interact with. Others come in scared out of their mind that the slightest misstep results in a contempt charge and incarceration. All are worried about the results and the level of uncertainty colors the Court experience. Court Customers suffer a sleepless night on the day before Court. They struggle to find the right Courtroom and the right building at the right entrance. Once in the door, the frazzled Court customer is emotionally overwrought. The presentation is a combination of vomiting feelings and facts with an incoherent dose of irrelevant history.
Whether the customer comes in like a lion or a lamb the customer deserves to be treated with respect and good service. The customer owes it to the Court staff and judges and everyone else entering the Court building to have a minimum level of preparation. Nearly everyone has access to a smart phone. A diligent Court customer can absorb the basic instructions necessary to get through most Court appearances unharmed. Customers are not going to be able to try a case like a pro, but there’s no reason the customer can’t watch videos, access online resources and get a vibe of how the case will go. The Court customer owes a duty to show up on time and have access to the minimum information that the Court or the adversary demanded in advance.
In the midst of the Coronavirus pandemic, Court and government access attorney Walter Luers, http://www.luerslaw.com/ kindly contributed an essay on the top of Court access and openness. Here are the
Access to Courts is governed by Court rules and a series of notices and orders. Prior to the crisis, Court proceedings were presumptively open to the public, with certain exceptions (e.g., DCPP proceedings), and members of the public who wanted to observe Court proceedings could do so in person.
Even before the crisis, access to public events was limited. Except for oral argument before the Supreme Court, the only way to observe a live proceeding was to physically attend it, which almost always would mean personally traveling to a Courthouse, passing through security, and navigating the halls of the Courthouse. This is a process that could be particularly intimidating or present unique difficulties for those who aren’t used to it or persons with disabilities.
This must change, and the current crisis presents an important opportunity for the Courts to expand remote public access to Courts proceedings that are, by Court rule, open to the public but in practice are difficult to access.
- post recordings of proceedings online.
- streamline how videoconference and conference call information is made available to the public
- eliminate the ban on recording remote Court proceedings
We understand that Court resources are limited, and some of our recommendations may be impractical at this point. Nonetheless, an indispensable aspect of maintaining the credibility of the Courts is transparency. Through no fault of the Courts, access to public Court proceedings during the crisis has been lowered. In a time when livestreaming is commonplace, the Courts should implement greater access to methods that allow the public to observe the excellent work of the Judiciary.
Note: This series 0f Ten (10) blog posts was planted and fertilized to grow into a short book. As with so many creative projects, this one has taken on a life of its own. The pace of change in the court systems handling of cases during the coronavirus lockdown gave me pause. If I write an authoritative and useful book, people will rely upon some of the key takeaways. It is entirely likely that by the time the reader needs to utilize those key takeaways they will be stale, incomplete or plain wrong. Hence, what was enthusiastically pursued as a book project will now be broken down into a series of substantive blog posts. I have extracted wisdom from many sources. A number of people were kind enough to speak with me, offer insights or pen important words as the court system wobbled. Enthusiastic thanks to: John Koufos, Right on Crime, http://rightoncrime.com/author/jgk/; Judge Thomas O’Brien (Ret.), Judge E David Millard (Ret.), Judge Philip Miller, Walter Luers, Esquire, Jack Arsenault, Esquire, Elise Holtzman, Esquire Lawyer’s Edge, Randall Kiser, Esquire, Ron Gaboury, CEO, Yorktel, Chris Draper, PhD, TROKT and Suzette Parmley, ALM, New Jersey Law Journal who contributed my directly helping me or upon whom I eavesdropped and now parlay shared wisdom here.