Judges Speak: Court Proceedings, Including Jury Trials, are Viable Using Remote VideoVideo recordings of appellate decisions have been made and posted for a decade, but new scrutiny is being given to the use of video in many other courtroom proceedings as technology allows for greater access and because the pandemic has led Congress and the Judicial Conference of the United States to allow such innovation. A significant number of chief judges of the bankruptcy and district courts in the Ninth Circuit believe the time has come to allow the use of video to save time and money, and to make courtroom activities more accessible to the public. The Ninth Circuit’s Ad Hoc Committee on Cameras in the Courtroom queried chief judges of the bankruptcy and district courts anonymously in February on their use of, and thoughts around use of, video in proceedings. The results overwhelmingly supported continued use of the medium to provide justice in a timely and professional manner. Three judges who have used remote proceedings extensively – in two cases for civil jury trials – were then asked for their views on current and future use of video in proceedings. The most telling data to come out of the survey is that almost 100% of the 26 courts that responded, out of 39 who received the survey, are already holding courtroom proceedings with a remote participation component. Several of the courts are enthusiastic users of video to ensure that calendars move along, and justice is neither delayed nor denied. Over three-fourths of respondents are holding civil pre- and post-trial hearings with a remote component, and nearly as many (70%), are holding judicial settlement conferences in the same manner. Just over half the judges noted criminal in-custody and non-custody hearings are also being held remotely in their courts. “Like many of my colleagues, I have handled all of my civil and most of my criminal matters remotely on Zoom, other than jury trials, since March 2020,” said District Judge James Donato of the Northern District of California, when interviewed. “On the civil side, I have held virtual hearings for case management conferences, patent claim construction, summary judgment motions, pleadings motions of all varieties, injunctions, Daubert challenges, preliminary and final approval of class action settlements and attorney’s fees applications, proceedings in multidistrict litigation (MDL) actions and more. A number of these hearings involved witness examinations and disputed evidence. On the criminal side, I have held virtual change of plea hearings, sentencings, revocations of supervised release, motions to suppress and status conferences.” Judges and attorneys overwhelmingly favor retaining video hearings in a wide variety of instances even after the threat of COVID-19 is reduced. The survey revealed that courts are finding efficiencies in holding video hearings that they will be reluctant to relinquish after they reopen to in-person proceedings. Holding criminal trials via remote connection raises concerns because the Confrontation Clause guarantees criminal defendants an absolute right to in-person bench or jury rials, so respondents view it as unlikely that any criminal trials will occur in federal court, but some suggest that juries can be selected remotely. Senior District Judge Thomas S. Zilly, of the Western District of Washington, has held jury trials where lawyers, juries and witnesses participate remotely. “When COVID-19 related restrictions are lifted or eased, virtual proceedings might continue in two key areas,” Judge Zilly said, when interviewed. “First, jury selection in civil cases and second, pretrial proceedings like status or scheduling conferences, oral arguments, and pretrial conferences, particularly when the attorneys do not reside in the local area.” One of the many positive elements to emerge from the survey is that there have been almost no complaints from the press or public concerning access to remote proceedings. The three complaints that did come in concerned the cost of CourtCall, a miscommunication about timing and the well-publicized case of Epic Games vs. Apple, which quickly maxed out the video meeting at 500 attendees. “The bar believes it has good access to the court,” one chief judge asserted when responding to a question about positive feedback. Another respondent noted, “The court has received positive feedback from the press and public, including from criminal defendants’ family members who are able to attend sentencings remotely, the media who no longer need to travel to the courthouse, and individual citizens, class members, and pro se MDL objectors who have had the opportunity to speak at court hearings.” Senior District Judge Marsha J. Pechman, of the Western District of Washington, has been holding a wide variety of proceedings, including jury trials, online. She has prepared and presented a comprehensive YouTube tutorial for judges who are interested in developing video in their courtrooms and has been interviewed several times on the topic. “For a long time we’ve been wringing our hands as to what should we do about the vanishing trial and we kept hearing over and over the federal system is too expensive for people to participate in; this an opportunity to bring the trial back and make it cheaper for the litigants,” she said, when interviewed. “The cost savings to the court and for counsel are actually quite obvious,” she noted. “Instead of bringing in 54 potential jurors to sit, and pay them the cost of coming in … I can select a jury remotely and then I have the option of bringing those people in directly, and now I’m paying for eight or 12 people instead of 50. It is obvious savings for the lawyers. They come from New York, Chicago, Los Angeles, Wichita, and just the fact they don't have to travel makes us more affordable. “Then there’s the issue of expert witnesses,” she said. “People aren’t paying for witnesses to fly across country, sit in courthouse corridors and cool their heels while charging $800, $900, $1,000 an hour, waiting to testify. They can be brought in via Zoom, testify and get paid for the time they actually are used,” she said. Another plus, Judge Pechman added, “is participation by the public. More people are responding to the summons. More people are able and willing to give us the time and invite us into their homes because it’s more convenient.” Technical glitches comprise the majority of issues chief judges noted in the survey, with poor internet connections drawing the most complaints. Only one chief judge relayed a procedural problem, noting, “The issue was really the effective presentation of evidence, particularly cross-examination, using a video platform.” Aside from keeping the work flowing, one chief judge found a number of positive elements to holding remote proceedings, including the obvious but critical “ability to keep court calendars current while minimizing health risks for parties, attorneys, and court staff.” Beyond addressing basic safety concerns, one respondent summed up the many plusses: “Remote proceedings have improved our ability to manage our resources more efficiently,” the comment stated. “For instance, we can now utilize court staff, including courtroom deputies, court reporters and interpreters to provide district-wide support irrespective of duty station. Remote proceedings are more economical for participants and in particular attorneys. Civil lawyers can appear for proceedings without having to devote hours or days traveling to the courthouse for relatively brief matters. The same is true for court-appointed criminal defense attorneys whose time the court pays for. Remote appearances also permit lawyers to appear easily and often on short notice, which enhances the ability of the court to move cases along. It also provides more flexibility for Probation and Pretrial Services Officers, who can appear remotely before multiple judges on a given day without the need to travel in heavy Bay Area traffic.” Judge Donato agreed. “With remote access, we can do these hearings without requiring lawyers to make a two- or three-day trip to San Francisco,” he said. “That means a substantially better work-life balance for lawyers – especially those who are parents or caregivers, reduced litigation costs and improved mentoring opportunities for younger attorneys, who can readily see their senior colleagues in action. I have polled a number of lawyers about this, and they consistently highlight these benefits. The reduction in air and other travel has the additional benefit of reducing the carbon footprint of litigation in federal courts.” When respondents were asked what proceedings are suited to remote hearings, civil pre- and post-trial hearings were okayed by nearly three-fourths of the judges and judicial settlement conferences by just over half the respondents. One chief judge itemized other suitable proceedings, noting reaffirmation hearings, Chapter 11 hearings, mediations, motion calendars, motion for temporary restraining order in an adversary proceeding, relief from stays, status conferences, confirmation and disclosure statement hearings. Jury trials of both types, criminal bench trials and grand jury selection were least favored. But even jury trials are being held. “The first virtual civil jury trial conducted in our district last fall involved a number of witnesses who would likely have testified remotely even if the trial had proceeded in the courthouse, as well as witnesses and attorneys who would have been required to travel a substantial distance to testify or participate in person,” said Judge Zilly. Judge Pechman concurred. “One of the trials that I had was a pharmaceutical contract with the Royal hospital in Oman, and all the witnesses were located in the Middle East,” she said. “They were located in Jordan, and Oman and Egypt. Never mind COVID, but the cost of that case, to bring all those people in, halfway around the world, made that case more affordable.” Judge Pechman’s second virtual trial example shows some of the hidden values of remote trials. “I tried a police misconduct case where the graphics were extraordinary,” she said. “People could see (them) more clearly than if they were in the courtroom because each of the jurors had their own iPad or their own laptop. They got a better view than they would have gotten in the courtroom, where they would have had to observe on our little monitors. They can adjust the size of the type of exhibits, they can adjust the brightness for them to be able to read clearly, and we had some extraordinary animations done because it was a 23-police car chase. The screens that we had were far superior to what we could produce in the courtroom.” One critical statistic to emerge from the survey is that over 80% of the courts that held proceedings with people in the courtroom felt they were able to effectively mask and maintain physical distance. One chief judge provided details on how they set up and maintain their courtrooms: “we have a dedicated courtroom for hybrid proceedings and a dedicated courtroom for jury trials, both of which are outfitted with plexiglass, and appropriate technology and distance markers. We also limit the number of people who can be in the courtroom, never exceeding the maximum permissible for adequate spacing. All participants are able to maintain distancing and all are required to wear masks. However, we have noticed that some attorneys may occasionally violate the distancing requirement during the heat of trial by, for instance, leaning in to speak with co-counsel or with a client. The system works best when the presiding judge is vigilant in enforcing the safety protocols.” Comments were generally very positive, with one chief judge noting: “Remote access systems were absolutely essential to continuing to operate the court. There is also a need for a nationally funded ZoomGov license structure, creation and funding of a “technical bailiff” position for each judge, expanded use beyond the pandemic period, formation of a judiciary working group on virtual court via video conferencing to gather and provide feedback to all platforms on the needs to conduct virtual court…” More simply, another chief judge said, “Works well and keeps the wheels of justice rolling.” Judge Donato voiced concerns that many judges have over remote trials. “With respect to virtual jury trials, I have not held one and do not plan to do so,” he said. “As strong a supporter of remote access as I am, I hesitate to try a case online with a jury. I’m concerned that credibility determinations might suffer, and that jury attention might stray in ways that I cannot see or correct. Remote access has many benefits, but this might be a step too far, at least for me,” he added. Judges Zilly and Pechman, however, are game to forge ahead with jury trials under the right circumstances. Judge Zilly noted he thinks civil jury trials can be held effectively using video or hybrid technology. “The fully virtual civil jury trials completed to date have proven that such proceedings can be successfully conducted via videoconferencing and web-based file-sharing platforms. The responses from jurors who participated in these trials have been very positive,” he said. “In the future, videoconferencing can continue to be an effective method for handling jury voir dire, taking testimony from witnesses, viewing the scene of an event, and/or managing jury deliberations, even if the balance of the trial is conducted in the courtroom,” he concluded. Judge Pechman agreed jury trials can be held remotely using video or hybrid technology. “It is the best tool that we have now, and certainly is an effective way to do it,” she said. “Every case that I had set in 2020 got tried in 2020. Everybody who wanted to go to trial got to go to trial and that’s justice.” Ad Hoc Committee on Cameras in the Courtroom members are Circuit Judge Morgan Christen of Anchorage, Alaska, Committee Chair; Senior District Judge Robert S. Lasnik of Western District of Washington; Senior District Judge Claudia A. Wilken of Northern District of California; and Kelli Sager, attorney at Davis Wright Tremaine LLP in Los Angeles. Link to Judge Pechman’s instructional video on holding virtual jury trials:
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