Zooming and judging presents new set of challenges

I can remember the exact moment. It was Friday the 13th in March 2020. I was in my Marion Superior Court office and received the system-wide email from our judicial Executive Committee.

It announced that Marion County courts would be closed for three weeks because of the growing Covid-19 pandemic. I gathered my staff, and we reviewed the court calendar for the next three weeks. I picked out two or three cases that could not be delayed, and we planned how to do those hearings. I had never heard of Zoom.

The following week, I conducted my first Zoom hearing. I decided that if court was in session, Zoom or not, then the judge should be in judicial robe and on the bench.

So I sat by myself on my bench in my empty courtroom, in my robe, and used the computer there.

First, a party appeared.

Then her counsel appeared on a separate screen. (How could they communicate privately? I wondered.) Finally, the other party appeared siting in his car in the parking lot of his employer and holding his cell phone.

It was like nothing I had ever seen or done before.

I thought a moment and told the parties to raise their right hands. I administered oaths virtually for the first time.

Now more than four years later, we are all used to Zoom, “virtual” hearings, and we daydream about the days of people coming to court live in person.

We even use Zoom with our friends and family. There are some media personalities that do all their work on Zoom – in news, sports, and entertainment.

Like the word “coke” when referring to any soft drink, we may be using the word “zoom” to refer to any live video meeting. Zoom is everywhere.

Maybe it is alright to have the whole world turned upside down by Zoom so quickly. But we judges and lawyers are not so sure – at least regarding conferences, “remote” hearings, or trials.

On one hand, a clear and beneficial Zoom effect on courts is improved appearance rates for parties, especially low-income and unrepresented litigants.

After the first year of pandemic, the Institute for the Advancement of the American Legal System (IAALS) reported that unrepresented litigants were showing up more frequently, and getting better results, due to courts’ strategies for self-help resources, like Marion County’s own Legal Resource Center.

On the other hand, there may be costs.

The National Center for State Courts publishes its “Trends In State Courts” every year. This year, it includes a study conducted by some Harvard researchers who determined that the now-ubiquitous Zoom hearings may come at a cost to litigants’ perceptions of fairness.

It found little data to conclusively determine whether or how remote appearances affect justice or fairness. It cites an Indiana study in which unrepresented litigants seem to prefer remote hearings when courts made special arrangements to accommodate those parties. It also discussed a study from rural settings in which the unrepresented litigants all preferred to appear in person – because their courts were friendlier and would always help them more easily than the larger areas.

In its own survey responses in the study, remote litigants were negative for various reasons:

• It was not clear what was going on, or what was happening.

• Litigants were overwhelmed.

• Litigants did not feel like they could ask questions.

• Litigants did not feel like they were heard or could explain their case.

So what is a judge to do?

A judge is required to control proceedings, provide fairness, measure credibility (even of lawyers), weigh evidence, and apply applicable law. It is not yet established that a Zoom hearing can allow a judge to do all that all the time.

Maybe Zoom has some advantages. I suppose people in person have made faces at me in court when I wasn’t looking, so that could be prevented with a Zoom close-up – and I suppose that a Zoom camera on a face can allow a judge to see a witness better to determine if they are truthful.

But overall, judges are still uncertain how to balance remote and in-person hearings, and there is still scant direction. Many judges, including myself, always prefer in-person hearings because the endeavor of judging is an art. It cannot be practiced as well on a screen.

There are many qualitative good points about remote proceedings, mainly cost and convenience. But what is sometimes lost is the intangible experience of seeing and hearing someone right there, being together with everyone right there, getting thoughts and feelings right there.

If possible, it would be helpful to have a study comparing case outcomes for remote and in-person hearings.

Some studies have suggested such outcomes are different. Justice deserves judges who can decide the same both remotely and in-person. How are we going to do that?

That is the challenge as we Zoom ahead.•

__________

Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association.