The Ghosts of 2020:
The Past, the Present and the Future of the Courtroom in the Continuing Age of COVID-19
I generally agree with the sentiment, “be gone, 2020, you most miserable of years!” (said with a Scrooge-like British accent). We are done with 2020, but what of 2021? Are there some things that we have learned and even improved upon in the legal industry that we can take with us as we move into the new year? What about all the talk of remote voir dire and virtual trials? Perhaps the ghosts who awakened Scrooge in the familiar Dicken’s story have something to offer us after a year like this.
Let’s start by taking a look at Ghost #1, the Ghost of Courtrooms Past.
The Ghost of Courtrooms Past
Go back before 2020. It all seems somewhat perfect now—courthouses with a full accoutrement of judges and staff; jury waiting areas full of jurors filling out questionnaires; attorneys scurrying with their rolling briefcases and the justice system in all its glory humming along. The Ghost of Courtrooms Past shows us some idyllic scenes, and they look wonderful right now. But do we glorify it all too much? If we are honest, the Ghost might show us that the trial calendars often moved slowly in many parts of the country. Jurors were not always so willing; they tired of the endless sitting and standing in lines, hurry; wait; hurry. The judges and staffs were often overworked, the technology in some courthouses malfunctioned, the benches were hard and the rooms were drafty or hot, or both, during a given day. There were inefficiencies and indeed even inequities, but we really miss those courtrooms now, don’t we! Looking back, we probably took for granted how it all worked. But we must move on…to Ghost #2, Courtrooms of the Present.
The Ghost of Courtrooms Present
Courtrooms are empty due to COVID-19; doors shuttered, and judges and staff are in their homes, attorneys are in their homes and potential jurors are in their homes. The legal world is dedicated to respecting public safety and social distancing, wearing masks, staying calm and carrying on, but that means empty courthouses. The Ghost of Courtrooms Present shows us that many are already innovating during these dark days. Remote conferences emerge and take the place of in-person hearings; bench trials are being run remotely; remote arbitrations, even in large scale complex matters, take the place of in-person arbitrations. Remote depositions become commonplace. Litigation support service companies, like U.S. Legal Support, are established technical gurus of online hearings, trials and depositions, guiding attorneys in their quest to conquer technology and put it to its best use. Many attorneys themselves have also become much more technologically savvy.
Remote witness preparation is a natural part of this new remote process, with witnesses from around the country being assisted in their preparation by lawyers and jury consultants without having to leave their homes. Some courts, attorneys and consultants venture into the discussion of jury selection and in some cases the realities of online voir dire and virtual/remote trials are conducted in Texas and Florida. While physical barriers and masks are used to make the in-person courtroom survive to an extent, many find out that the plexiglass shields, masks and required large spaces are more trouble than trying to figure out ways to interview jurors through a virtual voir dire process. DecisionQuest professionals continue to perfect the online mock trial which satisfies the need to study jurors in the venue and to watch them deliberate live, while safely online. Attorneys realize that this is the same jury analysis and solid data that came from the original in-person mock trials, but without the travel and costs.
Importantly, the jury pool has changed. Fears of COVID-19 are having and will continue to have a big impact on who will serve on a jury, at least in-person, because judges are granting requests to postpone jury duty or excusing jurors who appear for jury duty but are afraid to be there. Our research indicates that heightened fears of COVID-19 are correlated with attitudes towards litigation, such that those more afraid of infection, and therefore more apt to request postponement or to be excused, also tend to hold more pro-plaintiff attitudes (for example, tend to favor employees over employers and insureds over insurers). The result is that those jurors who are likely to survive jury selection for an in-person trial (regardless of method of jury selection) are more likely to hold generally pro-defense attitudes. As such, the jury pool as summoned in the near future will potentially be different than it was before the pandemic. Understanding attitudes about COVID-19 will be even more important in the future.
But we digress, and we need to move on to Ghost #3, the Ghost of Courtrooms of the Future.
The Ghost of Courtrooms of the Future
In the future, courtrooms are again busy. Judges and litigators realize that things have changed, mostly for the better. The use of remote technologies such as RemoteDepo™ by U.S. Legal Support have been eye-opening. Lawyers and jury consultants will continue to have online meetings with their colleagues, will introduce themselves to new clients and will participate in trainings and webinars without leaving their offices. In-person meetings will continue, but they will be supplemented by remote meetings. Remote depositions will continue and clients will be thankful for lower travel budgets. As for hearings, mediations, bench trials and even arbitrations, some will continue to be conducted remotely because there are many reasons to do so: schedules can more easily be accommodated, experts can be available on less notice and the attorneys from other states do not have to travel for what might be a two-hour hearing. Attorneys have gained technical expertise and are more comfortable using online systems while presenting oral arguments and showing demonstratives on-screen. Thanks to “hot seat operators” and technical experts who configure these hearings and arbitrations, there is considerable expertise to assist after the quarantine.
Remote voir dire will be given more of a chance to succeed, but it may take a basic understanding of the advantages—for example, in venues where jurors live far apart, this process could make getting a diverse pool of jurors easier and less cumbersome. Remote platforms are being seen as uniquely designed to allow for clear views of jurors (not from the back of the courtroom) and to hear the answers to the voir dire questions. There will be resistance, but less perhaps. Further, online mock trials and focus groups will continue to flourish, though not replacing in-person mock trials, but as equally valid, consistently productive and very cost-effective ways to study jurors.
As far as virtual trials, opinions still vary. Many attorneys do not like the changes involved in virtual trials and some of them have very good reasons—they want to make sure that the jury is representative and not biased by the lack of personal technology (courts need to respond with making devices and broadband available). They want to make sure their clients are fairly represented and not hurt by anything from technical glitches to the lack of ability to directly confront one’s accuser. Some objections are not as serious. Some attorneys worry about what jurors will look up on their phones when they are home, but others ask, “do they really have different access than when they use phone on breaks in the courthouse or after a day of trial?” Detractors worry about jurors’ attention spans while others point out that a dozing juror is not an uncommon site in an in-person trial. Technology must improve, adjustments must be made and in some matters, namely criminal cases and some complex cases, there may be no choice but an in-person trial. Discussion of this option will continue into the future.
What the Ghosts Have to Say
In Dickens’ novel, the Ghost of the Future shows what will happen if nothing changes. If the legal profession does not continue maximizing technology, surely it will have missed an opportunity to improve our system of justice. The Ghosts of Courtrooms Past, Courtrooms Present and Courtrooms Future are as real as the Ghosts in the world of Dickens’ Scrooge. It remains to be seen just how much we will learn from 2020 and how we will be better for it. Here’s hoping we wake to a new day with appreciation for the past, an acceptance of our present and looking forward enthusiastically to 2021!
About the Author:
Get to know Ann T. Greeley, Ph.D.