After the COVID-19 pandemic hit, many aspects of our everyday lives turned virtual. Office workers started participating in virtual meetings, children attended school virtually, individuals had virtual “get togethers” with friends. The legal system also had to find a way to continue operating safely. In many places, court hearings and trials also transitioned to being done virtually.
As with most things, there have been both downsides and upsides to conducting virtual hearings in civil cases. Perhaps the most recognizable “pro” is that virtual court proceedings save both attorneys and their clients a considerable amount of time – which means it also saves clients’ money. This is due not only to the fact that virtual hearings eliminate the need to incur costs for travel time back and forth to the courthouse, but also because attorneys can complete other tasks while waiting for their case to be called – a feat that cannot usually be done while waiting for a case to be called in the halls of the courthouse.
Virtual hearings benefit clients as well. While previously an individual may have had to take a day or half-day off of work to attend a simple motion hearing or case management conference, virtual hearings allow an individual to appear from their office, home, or vehicle – as long, of course, as they do not try to appear while actually driving. It also, in many cases, eliminates the need to find childcare for the period of time during which the hearing is being conducted, though individuals should always ensure that any minor children are out of earshot during virtual hearings. In divorce or custody cases involving domestic violence, virtual hearings also mean that a victim does not have to be in the same room as their abuser during hearings.
There are also, however, drawbacks to conducting court proceedings virtually. For attorneys, virtual hearings may lessen the chances of coming to a resolution with opposing counsel prior to the proceeding. It is a common trope that many cases are resolved “on the courthouse steps” – i.e., in the courthouse while counsel have time to discuss the case while they are waiting for their hearing to be called.
Some attorneys have also noted that virtual proceedings may be dampening their clients’ willingness to settle cases. This may be psychological, as standing in a courtroom in front of a judge is much more intimidating than seeing a judge in a small box on a computer screen. Some litigants become more willing to be reasonable when they want to avoid going in front of the judge again, but seeing a judge on a screen may not have the same effect. Additionally, not all individuals have access to a phone, computer, or internet connection – for some, trying to appear at a virtual hearing can take some doing.
The most significant disadvantage, however, to virtual hearings is the issue with ensuring due process for litigants. Earlier this year, the Massachusetts Supreme Judicial Court ordered a new trial in a case pertaining to the termination of parental rights. The district court had conducted a two-day-long virtual bench trial regarding the termination of a mother’s parental rights. During the trial, however, the mother, who was appearing telephonically from a cell phone, had connectivity issues and missed part of the testimony. Then, when the mother was asked if she had any questions for a witness, she stayed silent, and the judge instructed their clerk to disconnect her. The hearing resumed without the mother, but even witnesses had issues, including one witness whose video connection froze.
On the second day of trial, the mother informed the judge that her cell phone service had been poor during the prior day of trial and that she could hear what was going on, but could not be heard by the court. Instead of asking her how much of the prior testimony she had heard, however, the judge simply asked if she was ready to cross-examine the first witness. There were more connectivity issues during the second day of trial, but the mother grew frustrated because she was unable to produce her evidence. The judge then terminated the mother’s parental rights.
Upon appeal, the high court stated that a virtual trial to terminate parental rights was not necessarily constitutionally unsound in and of itself, but that this trial violated the mother’s due process rights due to “technological issues and inadequate safeguards.” The high court ordered the lower court to conduct a new trial.
Another major issues that comes up with virtual trials has to do with witnesses. A third party witness should not be privy to the testimony of parties and other witnesses who testify before them, lest their own testimony be influenced by prior testimony. In situations where a party to a case resides with a third party witness, it may be difficult for the court to enforce this restriction, as they may not realize that the witness can hear the party’s testimony.
Additionally, one of the most important tasks for the court during a bench trial – i.e., a trial presided over by only a judge and no jury – is assessing the credibility of witnesses. This is important because the judge will need to determine how much weight to give to that witness’s testimony. Witness credibility is evaluated not only based on the witness’s testimony, but also their tone of voice, facial expressions, and body language – all things that can be difficult to ascertain on video.
Finally, due to technology issues, even though there is time saved traveling to the courthouse and waiting for a case to be called, the virtual hearing itself can sometimes take longer than a hearing in person due to technological issues and delays. These factors come into play mainly during bench trials. For jury trials, there are a whole host of other concerns when it comes to implementing technology.
As the pandemic slowly evolves into an endemic, more and more courts are opening back up and many judges are electing to conduct pre-trial hearings virtually but trials in person. If you have questions about appearing in court right now, an experienced attorney can help answer your questions and advocate for you based on the needs of your particular case.