Since COVID-19 struck, courts have been grappling with how to safely conduct proceedings.  Every state has had to take steps to minimize the danger of COVID-19 in the courtroom.  Some of these steps include:

With courts still largely holding proceedings over Zoom (or Webex or other similar video conferencing technology), the accessibility, pace, and rules of court are changing too.  Some courts provide the judge’s meeting IDs, as you’d be assigned a courtroom in real life.  It’s not exactly what most lawyers expected practice to look like when they dreamed of litigation, but drastic times call for drastic measures.

But is it fair?

Zoom has undoubtedly allowed courts to continue operating at a time when in-person hearings were out of the question, and for that it deserves praise.  The change was sudden, however, and there are still some kinks to work out in terms of ensuring Zoom court is fundamentally fair.

Court watchers

Among the first to speak up were court watchers and advocacy groups. Since court proceedings are usually open to the public, these advocates rely on their ability to watch hearings and trials to make sure the process is operating smoothly and fairly.  With the advent of Zoom, court watchers have had much more limited access to proceedings.[4]   This is not for any apparently malicious reason, but merely because Zoom requires a certain level of security to keep out “Zoom bombers” and other disruptive parties.  And although public and press access to watch court proceedings is integral to maintaining fairness and accountability, it took some non-profit groups to speak out about their access being limited for some courts to begin providing links to watch proceedings – albeit at the presiding judge’s discretion.

Zoom bombers??

Who actually are ‘Zoom bombers’?[5]  In most cases, ‘Zoom bombers’ they are simply online trolls who drop in to live public forums and disrupt the meetings with inappropriate comments.  Although many of them are ultimately harmless, they have forced public Zoom users to find a balance between totally open forums and hearings restricted just to the parties.

Internet access

Access to the internet is another issue around fairness that has cropped up – both for lawyers and pro se litigants.  Although the bulk of legal resources in the United States are dedicated to representing corporate interests, the bulk of people involved in the legal process are individuals, many of whom are low-income.  U.S. courts have pointed out already that free public WiFi won’t cut it.  19 million people in America are still without Internet access at all,[6] let alone a strong enough Internet connection to get through a hearing seamlessly.  If a party needs to be present at an online video conference, it’s possible that the internet and technological literacy to successfully join a Zoom call could pose a challenge to their meaningful access to the court.

Due process

No discussion about the fairness of Zoom court would be complete without the two words “due process”.

A few due process issues definitely do come into play when it comes to holding court over the internet, especially in the criminal context.  Beyond what has already been discussed around access to internet and court watchers’ ability to monitor, critics have also questioned rather presciently whether the parties can adequately judge the credibility of witnesses.

Witnesses play an important role in establishing facts, and the ability to impartially assess how credible they are is critical to the fact-finding process.  There is some research into how video versus live meetings affects viewers’ judgment on the credibility of the speaker, and the data shows that live witnesses tend to seem more credible and more sympathetic than those appearing over video.[7],[8]  As Zoom becomes engrained in our culture, maybe this perception will begin to shift, but for now, this disparity could pose issues when it comes to fairly presenting the facts.

There are also concerns about defendants’ right to confront witnesses under the Sixth Amendment, and even to some extent under the Fifth Amendment for civil proceedings.  Usually, this “right to confront” plays out in the form of cross-examining and impeaching witnesses.  It’s still unclear whether due process would be better served by a digital confrontation, or merely a continuance until a time when the parties may safely meet in person.

Confidentiality

Finally, Zoom poses some questions about confidentiality.  Though there is some level of confidence in Zoom’s security features, it’s important that the attorney and client have the opportunity to speak privately.  One instruction from the National Center for State Courts advises using the breakout rooms feature in this situation.[9]  This could prove to be a viable option, but the court administering the video must know how to do it properly to avoid compromising the confidentiality of the conversation.  Now, since Court proceedings must be recorded, participants should note that a cloud recording only records the main room, not breakout rooms.  However, if the recording is local, the breakout rooms are recorded as well.[10]  The Oakland County Courts in Michigan offered the following in their Zoom Tips for Attorneys and Parties.

If you and your client appear from different locations and you need to speak confidentially with your client during the hearing, the court can put you in a breakout room for a separate video conference that will not be observed or recorded in any way.[11]

The future of virtual proceedings

It maybe that Zoom court, in some form may be here to stay for a while. Since in some ways, it actually increases some parties’ access to the courts and may end up being more expeditious than going to a courtroom, at least for certain kinds of hearings, it’s not unreasonable to think this practice may continue to some degree even after the COVID-19 emergency – at least in some courts. There will be immediate questions around access, fairness, and accountability, that will need to be considered, resolved and fine-tuned however, before online proceedings can become the way of the future.