As much as I loathe this increasingly common phrase, it cannot be avoided. We must think about “the new normal.” And we must think critically about what it is and what it ought to be for the legal system. While courts everywhere are bound to reopen eventually, I suspect the “virtual court model” will become part of the new normal. How it becomes such a part is yet to be determined and should be determined with care.
The past three months have, in essence, been a worldwide exercise in trial and error for remote working capabilities. “Socially distant” lawyering was certainly not how I envisioned my first year of practice. Perhaps unsurprisingly though, the run-of-the-mill lawyering tasks, like legal research, drafting, and client calls, have carried on without much interruption. Filings hit a few bumps in the road but seemed to jump back on track fairly quickly, at least in New York. Notarizations and swearings-in made the jump to video conference. However, to echo what many legal practitioners have long known and recently remarked upon, removing the in-person elements of proceedings has a huge impact on not only the practice of law but on the outcome of cases.
It seemed obvious to me (though apparently not to others) that certain standards of decorum ought to be maintained while remote lawyering. What was not instantly obvious, however, was the influence that variations in video conference capacity would have on … well, everyone. Looking back to the Nixon-Kennedy debates and the impact that speakers’ demeanors and appearances (and good makeup and bad lighting) can have on world history is informative.
For appearances by video, structural elements such as strength of wireless connection, video quality, and lighting presumably have as much of an effect on participants and viewers as one’s in-person demeanor would. However, these elements are not always in the participant’s control. Such control may be subject to any number of random variables (a flickering light or a blaring ambulance passing by), but it may also be subject to less random socioeconomic factors. Big firms may be able to provide full studio effects to their high-paying clients for a video conference with a judge, while indigent parties may barely even have access to a computer or video capacity, let alone a quality microphone and lighting. The inevitability of such a disparate impact of these elements (and others) on parties in all types of cases, handled remotely, may result in new twists for all kinds of appealable issues — fairness, effective assistance of counsel, ability to effectively participate in one’s own representation, and the right to face one’s accuser, to name just a few. For example, The Marshall Project has noted that judges tend to set lower bail when they know they are being observed by the public and by volunteer court observers, yet public access to proceedings has dropped down to nearly none, which raises not only accountability questions but also, of course, Sixth Amendment right-to-a-public-trial questions. Research and advocacy organizations like the Brennan Center for Justice are just beginning to study the myriad constitutional questions arising from the virtual court model.
Constitutional questions aside, as Zoe Schiffer discusses, so much of legal advocacy and judicial decision-making turns on having a feel for the courtroom and the people in it — the parties, the witnesses, the jury. Tone and body language, which inevitably affect judges’ and juries’ perceptions of witness credibility, are examples of in-person elements that cannot be replicated in the virtual court model landscape of floating heads in mismatched lighting. In many types of cases, the ability to assess witness credibility, and more simply, how a jury feels about the parties, is everything. For example, in Harvey Weinstein’s 2020 trial the outcome seemed to depend on who the jury believed more. We’re back to the Nixon-Kennedy debate essentials — perceptions based on demeanor, makeup, and lighting can change the course of history.
The virtual court model has many drawbacks, yet its efficiency cannot be denied. I think it will become part of the new normal legal landscape — and I believe its rightful place should be not as a requirement but as a regularly available option. Countless types of clients and cases (presumably civil ones) would benefit from the speed and convenience of virtual proceedings and would not necessarily be harmed by the structural drawbacks, provided assurances of appropriate safeguards for individual rights and principles of fairness. I foresee virtual court provisions — or in-person waiver provisions — routinely being added to contracts and possibly even added to state and federal rulebooks. To avoid inequities and other pitfalls, and to aid in security and flexibility, I foresee the development of specific virtual court platforms, with uniform backgrounds and audiovisual filters. I foresee a new niche for expertise and prowess in virtual advocacy. With sufficient care, this model could save courts and clients alike time and money. While it is unlikely that anything can replace the effect and importance of in-person advocacy, especially for criminal cases, the virtual court model could become an excellent supplement to the traditional legal system.
Megan E. McKenzie, a recent graduate of Georgetown University Law Center, works at Balestriere Fariello while her admission to the bar is pending. She works with her colleagues on all aspects of domestic and international complex litigation, arbitration, appeals, and investigations. You can reach her by email at [email protected].
