Observing Online Courts: Lessons from the Pandemic

Abstract

Before the COVID-19 pandemic, few adults would have asked themselves the question, “what are courts?” If they did, the most likely answer would have talked about the courts in terms of buildings. Suddenly a pandemic was upon us, and that forced us to think again. Courts went online, and looking at what happened helps us to consider more clearly what courts really are. In fact, courts are providers of important services. Focusing on that mission of service provides a filter for considering both current adaptations and future plans. When in-person hearings can resume safely, there will be a tendency to try to go back to the way things were before. But should we? To answer that question, we need to know more about what has been happening in those online hearings. In March, to keep vital legal processes moving while keeping participants and the public safe, the Texas Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create public access to those proceedings on YouTube. During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours. In so doing, it provided a unique gift: a window into the crucial proceedings of everyday trial courts, hearings that are normally ignored and that almost never result in reported opinions. This article describes the findings of on an observational study of hearings in those courts. A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings “work”? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts? The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence). As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself improves. From a human standpoint, consider some snapshots: an adoption ceremony was witnessed by 75 people from around the world; an out-of-state witness was able to testify; a mother was able to participate in her hearing without having to give up a day’s pay; an arresting officer was able to appear by taking a few moments off rather than spending hours traveling and waiting to testify; a lawyer avoided two hours of travel for a fifteen minute hearing; another lawyer was able to work productively while in a Zoom waiting room instead of. sitting on the courtroom benches for docket call; a judge serving multiple rural counties saved hours that would have been spent driving among courthouses. After reporting on the observations, the article turns to lessons for the future. Even when courts are able to return to fully in-person hearings, should they? What processes should continue to be done online? What absolutely needs to hang onto in-person processes unless completely infeasible? More fundamentally, what has this taught us about what courts are really about? Courts and judges have done an admirable job adapting to the online environment, but can we also see opportunities for more fundamental innovation? When the pandemic is no longer forcing the issue, there will be a tendency to reach for the familiar, to return to doing everything in person, at the courthouse. It does not have to be that way. These lessons should not be lost, and the courts can reach beyond “normal” -- they can reach for better.