Opinion: Remote court proceedings are promising, but not risk free
We are not surprised that the Texas Supreme Court has proposed making permanent some experiments undertaken out of necessity during the COVID pandemic. Recently proposed changes to Texas civil procedure, to be implemented in 2023, acknowledge that remote, mainly online procedures, bring benefits. Through focus groups, interviews, and surveys, we discovered that many court users, including judges, attorneys, and litigants and defendants, found online court procedures more convenient and efficient than in-person hearings, especially after a difficult transition period early in 2020.
One Texas-based attorney told us “It can’t be emphasized enough how much virtual proceedings made it easier for litigants to access justice.” Texas lawyers particularly praised the benefits of online court for vulnerable individuals: one noted “Survivors of domestic violence, sexual assault, and other types of crimes felt much safer testifying over the internet.” We heard also that virtual proceedings facilitate participation by individuals with disabilities.
Just the same, there are risks to video court, and major changes in procedure must be structured to acknowledge these, minimizing unintended bad consequences. We emphasize four points that arose from our research.
First, even in 2022, fast internet access is not universal anywhere in the United States, Texas included. There are wide disparities in the types of devices people use to sign on to virtual court and in comfort levels with online platforms. Lawyers, judges, and expert witnesses typically have reliable laptops and speedy internet service and are adept at using them. By contrast, some individuals can access a virtual courtroom only by cell phone with a limited data plan or an outdated computer and slow internet. As courts shift many proceedings to remote venues, it is important that judges and attorneys make accommodations for those without state-of-the-art technology.
Second, technology has not yet delivered on instantaneous translation and error-free recording. A shortage of court reporters has prompted some experimentation with automated transcription, and online proceedings have accelerated that trend. But where transcripts are necessary, it remains the case that the best software is an imperfect substitute. Courts should be wary of vendors’ promises and address head-on the challenges of transcribing video sessions.
Third, many of those involved in online court proceedings over the past few years told us that settlements and informal negotiation are far more difficult when the parties are not physically proximate. Eviction cases, for example, have long settled through “hallway deals” at the courthouse. Replicating that mechanism requires giving lawyers access to virtual breakout rooms for last-minute negotiation while they await their turn with a judge. During the pandemic many judges ran Zoom platforms themselves. Just as physical courtrooms have support staff to assist with in-person proceedings, new, tech-savvy, staffers are needed to run virtual proceedings.
Finally, research on more subtle effects of virtual court is still quite new. Do those who appear without legal representation do better online than in-person? How much illegitimate witness coaching takes place? How often are witnesses not actually alone while on camera, possibly being coerced by the mere presence of someone off camera? Are online proceedings markedly less civil? On such matters, the jury is still out. Speaking of juries, our respondents almost all concur with the Texas Supreme Court that jury trials do not work well online. Virtual court is especially unsuitable in cases involving physical evidence.
Courts tend to be slow to innovate, but the pandemic forced them into experimentation. Some changes to procedure were long overdue, and states should learn from data on what kinds of proceedings can be moved online with few costs and many gains. Texas is sensible to be leading the way in this regard. Careful attention to costs and risks can promote justice and not just efficiency.
Gaines, a professor of political science, and Mazzone, professor of law, are faculty at the University of Illinois Urbana-Champaign and the University of Illinois System’s Institute of Government and Public Affairs. Robin Fretwell Wilson and Matt Mettler contributed to this article.
This article originally appeared on Austin American-Statesman: Opinion: Remote court proceedings are promising, but not risk free
