- PCLaw | Time Matters
Will COVID-19 change the courts for good?
By: Mike Baldwin
COVID-19, and the dramatic shifts in our daily lives that it has caused, have brought new perspectives to the world. Remote work, video meetings, contact-less delivery, social distancing, flattening the curve, and other concepts have become recurring topics of conversation.
No doubt, this experience will have a lasting effect on our global society and fundamentally change our lives.
But what will that look like? What will “normal” consist of, after the pandemic has subsided? Those are two of the questions that business leaders, employees, parents, teachers, business owners, technology vendors and others are trying to answer. None of us has been through something quite like this before, and the future is difficult to envision.
Courts facing change
Those in the legal industry are wondering how the courts will adapt. In the wake of COVID-19, most state court systems in the United States suspended or reduced in-person criminal proceedings, a major shift for the operations of law. US courts have instituted various closings, cancellations, and restrictions, depending on the jurisdiction.
Courts and other legal professionals are using remote meeting alternatives. Guidelines for electronic hearings by Zoom, like these from the Texas Judicial Branch, are being provided to attorneys. Canadian Federal Court had extended its suspension period, with “urgent” or “exceptional” matters being heard by video or telephone.
A Texas court recently became the first to hold a jury trial by Zoom, and the Canada Supreme Court announced that it will hear some appeals via video conference.
The world of court procedure has changed rapidly and both law firms and the courts themselves are actively seeking to find the best path forward.
A history of long-standing traditions
Much has changed with the world, and with the courts since the U.S. Supreme Court first gathered in 1790. Communication, technology, transportation, culture, medicine, commerce, and most other major aspects of life are now drastically different from what previous generations would have experienced 230 years ago.
Many enduring courtroom traditions, however, do carry on in one form or another. For instance, it is said that since the early 1800s, the U.S Supreme Court has placed goose-feather quill pens on counsel tables before every oral argument. Justices continue to participate in the “Judicial Handshake,” a tradition going back to Chief Justice Melville W. Fuller during the late nineteenth century.
In Canada and the United States, judges wear robes, a tradition that comes from British roots. Canadian judges often have black robes with a lining or sash of a specific color, depending on their level of court and jurisdiction. Supreme Court justices in Canada wear fur-lined ceremonial scarlet robes on certain occasions.
With so much long-standing tradition, it is sometimes difficult to think of change in the courts, but they have adapted with the times.
Courtroom evolution
Even in the courtroom’s rich atmosphere of history and ritual, evolution is an ongoing process. North American courts, their structure, and procedures, have been shaped by inspirations and new developments throughout their history. Courts have been created and abolished, structures have been reorganized, and procedures have been updated and reformed many times.
Courts have even dealt with past health-related events. Yellow fever, influenza, anthrax contamination, and now COVID-19 have impacted the courts.
One key area of change that is especially topical, at present, is courtroom technology. In the earliest days of North American courts, paper, seals, pen, and ink were standard tools for legal notes and documents. Plenty of reference books stood at the ready. Since then, courts have had to determine proper uses for many technology innovations including:
Photography
Telephones
Microphones and Speakers
Printers
Video Displays
Audio and Video Recording and Playback Devices
Desktop & Laptop Computers
Personal Digital Assistants
Smart Phones
Stenography and Court Reporting Equipment
Presentation Software
Annotation and Witness Monitors
Video Conference and Remote Witness Testimony systems
Evidence Cameras
Wireless Technologies
Electronic Recordkeeping
E-filing Technology
Electronic Dockets
Computer-Aided Transcription (CAT) machines
Technological and scientific developments particular to the presentation of evidence, such as forensic and medical substantiation, have also been introduced over the years, leaving courts with many more changes to make.
What will the future hold for courts?
With all the technology, task automation, and paperless process options already available, and new developments every year, courts have a lot of decisions to make.
Considering recent experiences with COVID-19, court officials must make choices that will affect the experience of all who participate in the legal process.
Some questions that face legal professionals include:
What is the best course to provide for public health and safety, while maintaining the essential functions of law?
What ramifications may be involved in instituting new devices, processes, or software, and how might they impact fairness, accessibility, and resolution of matters?
What is the contingency plan if a new technology or process fails to be successful?
What changes in the courts will be temporary, and what will endure?
Will court system changes would require additional technology investments by law firms?
Will the adoption of certain technologies make some processes more efficient and lead to cost savings for firms and the government?
Potential outcomes
There has been speculation about how, when, and even if the courts will re-open and well-practiced customs will return to “normal.”
On one end of the spectrum, it is possible that courts would return to their pre-COVID operations as public health guidance permits, with no noticeable changes in the way that they operate. They could decide that measures that were taken during the unusual circumstances of the pandemic would be abolished, and all procedure and technology would be as it was in January of 2020.
At the opposite extreme of speculation, courts would never return to many in-person proceedings and interactions. New processes would be adopted to allow for remote video connections, or other electronic solutions on all viable court functions and in-person contact would be limited to situations where no alternative was available.
Likely, officials, informed by the recent experience of Coronavirus and equipped with the knowledge of the past, will craft the “new normal” to be somewhere, judiciously in between.
Considerations for an electronic legal world
As more technology solutions are employed in court processes, it is likely to introduce new situations for legal professionals to navigate.
For example:
It is almost time for my client’s divorce hearing, occurring over remote video and he is experiencing an outage from his Internet Service Provider. What are the next steps?
What is the best way, in a remote environment, to engage a jury and get them to more fully understand the evidence that is being presented with video technology?
How do I compensate for the reduction or lack of in-person connection that I have previously had with jurors, judges, clients, and counsel?
No clearly defined answers
In the midst of so many questions related to courts, their future plans after the COVID-19 pandemic finds resolution, and how long the “return” process will take, it is very difficult to come up with any definitive answers. Only time will tell what adjustments will be made in a post-Coronavirus world, until the next stimulus brings additional change. Smart firms will be planning their strategy and adapting to allow them the best chance for success.
About the author:
Mike Baldwin joined the PCLaw and Time Matters team in 2018, as the Director of Product Management at LexisNexis. As VP of Product Management at PCLaw | Time Matters, Mike oversees product management, quality assurance, and documentation teams for the company. Prior to managing PCLaw and Time Matters product groups, Mike worked on the product management team for LexisOne, a large law UK-based practice management solution as part of LexisNexis. Mike is based in Raleigh, NC and enjoys looking for new ways to solve customer problems.