“There is nothing wrong with change, if it is in the right direction.”[i] The COVID-19 pandemic has instigated change to our lives and touched every industry across the country. For schools, students were moved to online platforms in place of classrooms. Gyms and yoga studios were limited to offering various workouts and classes online. For many businesses with office settings, employees traded in cubicles and conference rooms for a laptop and Zoom subscription. The practice of law is no exception. This article is intended to highlight the current trend of the virtual courtroom and law practice, to discuss the positives and negatives behind this trend, and to feature why the future practice of law may be dependent on a law firm’s acceptance of the trend.
The Growing Use
In Oklahoma, State Courts are authorized to use videoconferencing in place of court appearances.[ii] The Rule “is intended to provide a judge presiding over any matter in District Court with broad discretion regarding the use of videoconferencing.”[iii] Meanwhile, in response to the COVID-19 pandemic, Federal Courts in Oklahoma have provided instruction for implementing similar videoconferencing for several types of proceedings. In the Northern District of Oklahoma, proceedings may be conducted by video conferencing for detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, probation and supervised release revocation proceedings, pretrial release revocation proceedings, misdemeanor pleas and sentencings, among other proceedings.[iv] The Western District of Oklahoma has issued a nearly identical Order.[v]
Not surprisingly, this innovative answer to the COVID-19 pandemic is not limited to Oklahoma. There are other stark examples of courts across the country implementing similar procedures. Many states began holding virtual hearings by early April. Meanwhile, Texas has already performed an entire trial on Zoom.[vi]
In addition, examples of face-to-face business taking place in a virtual world has already reached incredible heights. On the night of April 23, 2020, 15.6 million viewers tuned in to watch the First Round of the NFL Draft.[vii] This broke the previous record by more than 3 million viewers.[viii] And how was this possible during a global pandemic? Every NFL team’s draft room went virtual, connecting by video conference through an online platform for four straight hours of draft coverage. Granted, this substantial result may be somewhat attributable to fans going six prior weeks with no sports. However, it also serves as a clear indication that these virtual capabilities can be used on a significant stage. And on April 23rd, that point was on display for a large portion of the country.
Although the virtual courtroom may have started as a short-term fix to an unprecedented crisis, going forward, it is likely that its positive aspects will be too attractive to turn away. According to a 2019 Business Travel Report, an average business trip costs $1,293.[ix] Those numbers are only expected to rise in the future.[x] Imagine the money clients will save when a large percentage of traveling expenses are eliminated. Say you have a deposition in Philadelphia that would normally take two days away from the office. You pay for roundtrip air travel and cross your fingers that the delayed, connecting flight at O’Hare still gets you in on time. You reserve two hotel nights just in case someone shows up late or comes down ill the following day. Then, factor in meals, as well as some form of transportation in an unfamiliar city. Compare that scenario with a potential alternative. You log on from your office or conference room, videoconference with the deponent from 9:00 to 3:00, and still have time to finish up some research before you are home before 6:00 P.M. that same day.
On top of the financial savings, the virtual courtroom could open the doors to unparalleled efficiency. Think of the time saved for attorneys who no longer must spend hours (or days) going to-and-from a hearing that otherwise would take an hour. Those six hours spent driving back-and-forth across the state could instead be used to fine-tune that brief which needs a little more discussion; or to get started on those discovery responses with which an inevitable deadline looms at the end of the week.
Not only could this time-savings apply to attorneys, but judges as well. In Queens, New York, one Justice described his virtual courtroom experience, stating “[e]verybody’s home, it’s amazing.”[xi] The judge “drank a cup of coffee, put on a shirt and tie and got ready to face his courtroom.”[xii] Even more striking, Judge Cohen of the Eleventh Judicial Circuit Court in Miami, Florida recently described the evolution in the following way: “I don’t think this is going away . . .. I think this is going to be a game changer. Both civil, family and probate divisions as well. Lawyers will not have to come in to wait to see the judge.”[xiii]
There are additional factors that point towards virtual courtrooms becoming more prevalent. No one wants to see another global crisis like the one we have been maneuvering through over the past several weeks. However, if something like COVID-19 did strike again, the lawyers and courts who embrace these changes will be far more prepared to operate in as much of a “business as usual” mode as possible. These changes will not only apply to virtual court appearances. You can count on client meetings, witness preparations, mediations, and the like, to also use this new wave of efficiency.
A virtual courtroom is not without its potential issues. The online platform Zoom is currently blocked by the Oklahoma Administrative Office of the Courts due to security concerns.[xiv] However, applications like Skype, Bluejeans, Microsoft Teams, and GoToMeeting remain readily available. Plus, Zoom now has features which protects security and authenticates its users, much like many of the other online platforms.[xv] There are certainly possible issues with reliance on audio, video, and internet connection. One does not have to stretch the imagination too far to envision a computer screen going to black in the middle of an oral argument or a party losing all audio in the middle of a judge’s instruction. And the longstanding tradition and alure of a courtroom may be difficult to replicate when all parties join in from their remote locations.
Further, the learning curve for new users will be unavoidable. This issue brings up additional questions centered around fairness. One legal author recently framed the issues of privacy and fairness quite succinctly. She stated how “moving from a physical to virtual space can impact the experiences and treatment of participants.”[xvi] It is a valid concern. More specifically, the article points out how videoconferencing could have a negative impact on a judge or adverse party’s ability to assess other parties’ credibility, emotions, and body language.[xvii] Moreover, there could be wide-ranging differences of “technological competence” between adverse parties.[xviii] Plus, issues of objectivity could even arise in cases where one party has less advanced technology, impacting how lawyers and witnesses could be perceived.[xix]
Part of the practice of law will always have standing in a historical model and tradition. However, at the same time, the practice is ever-evolving. Look no further than the reactions to our global crisis of the past weeks. And the response by courts and lawyers throughout the country seem to point towards this virtual system becoming much more widespread in the future. Following the 2020 NFL Draft, coaches and general managers across the league used the words, “awesome,” “fantastic,” and “outstanding” in describing the virtual experience.[xx] Les Snead, general manager of the Los Angeles Rams, stated, “The draft may have just evolved.”[xxi] While no one has a crystal ball, all signs seem to indicate that if law firms do not embrace these changes and advancements in technological efficiency, they may be left behind.
[i] This quote is credited to Winston Churchill. It is thought to have come from an exchange in the House of Commons with Philip Snowden when Churchill defended his first budget in 1924. See Karl-Georg Schon, Wit & Wisdom, Finest Hour 100, 50 (Autumn 1998), https://winstonchurchill.org/publications/finest-hour/finest-hour-100/wit-wisdom-10/.
[ii] Okla. Stat. tit. 12, Ch. 2, App., R. 34.
[iii] Id. at R. 34(C).
[iv] See In re: Video Teleconferencing or Tel. Conferencing of Certain Criminal Proceedings Under the Coronavirus Aid, Relief, and Economic Security Act, GO-20-07 (N.D. Okla. Mar. 30, 2020).
[v] See In re: Use of Video and Tel. Conferencing for Criminal Proceedings During the COVID-19 Pandemic, G.O. 20-9.1 (W.D. Okla. Mar. 31, 2020).
[vi] See Angela Morris, Now Trending in Texas: Full-Blown Bench Trials via Zoom, Texas Lawyer (Apr. 21, 2020), https://www.law.com/texaslawyer/2020/04/21/now-trending-in-texas-full-blown-bench-trials-via-zoom/#.
[vii] According to CNBC. Justin Birnbaum, 2020 NFL Draft Proves it can Work from Home – and Score Record Ratings, CNBC (Apr. 27, 2020), https://www.cnbc.com/2020/04/27/nfl-draft-proves-it-can-work-from-home-too-score-record-ratings.html.
[ix] The Average Business Trip Costs $1,293 and Prices Will Increase in 2020, Businesswire (Oct. 3, 2019), https://www.businesswire.com/news/home/20191003005109/en/Average-Business-Trip-Costs-1293-Prices-Increase.
[x] Id. See also Scott Hyden, Business Travel Costs are Expected to Rise – Here’s how to Negate the Price Bump, Entrepreneur (Aug. 24, 2018), https://www.entrepreneur.com/article/318919.
[xi] David Brand, Courtroom Goes Virtual for Emergency Judge Joseph Esposito, Queens Daily Eagle (Apr. 13, 2020), https://queenseagle.com/all/courtroom-goes-virtual-for-emergency-judge-joseph-esposito.
[xiii] Hank Tester, Coronavirus Impact: Pandemic Could Bring About Virtual Courtrooms, CBS Miami (Apr. 3, 2020), https://miami.cbslocal.com/2020/04/03/coronavirus-virtual-courtrooms-miami-dade/.
[xiv] See SCAD No. 2020-36 (Apr. 29, 2020).
[xv] Charlie Osborne, Zoom Security: Your Meetings Will be Safe and Secure if you do These 10 Things, Zero Day (Apr. 22, 2020), https://www.zdnet.com/article/make-sure-your-zoom-meetings-are-safe-by-doing-these-10-things/.
[xvi] Amy Salyzyn, “Trial by Zoom”: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings, Slaw (Apr. 17, 2020), http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/.
[xx] Jeremy Fowler, Stories Inside the Virtual 2020 NFL Draft: 10 GMs on What They Learned, ESPN (Apr. 29, 2020), https://www.espn.com/nfl/draft2020/story/_/id/29110271/stories-virtual-2020-nfl-draft-10-gms-learned.
Originally Published in Tulsa Lawyer Magazine, June 2020 edition