TALP 39 | Online Court Proceedings

 

Technology has changed the practice of law in recent years, but the COVID-19 pandemic completely upended it. Remote court proceedings became the norm overnight. For many attorneys, this change required rethinking the way we practice. Few people have spent as much time examining and critiquing these new proceedings as SMU Law Professor Elizabeth Thornburg and her research team. She joins Jody Sanders and Todd Smith in this week’s episode to talk about their study, the findings, and ways attorneys and judges can handle and improve remote proceedings. She also addresses potential issues with online hearings, jury trials, and the impact of moving justice outside of the physical courthouse.

Listen to the podcast here:

Lessons Learned from Online Court Proceedings | Beth Thornburg

Our guest is Professor Beth Thornburg of SMU Law School. She is here to talk about Zoom hearings. Professor Thornburg, thank you for joining us.

Thanks for inviting me.

We’re happy you’re here. For our readers who didn’t go to SMU Law, can you tell us a little bit about yourself, your background, and how you got into teaching?

I grew up in Connecticut and have been winding my way Southwest ever since. I went to college at William & Mary Law School at SMU. While I was in law school, I clerked for a small law firm, then I clerked for a US district judge in town, and then worked for what then was Locke, Purnell, Boren, Laney & Neely. It’s gained and lost a few names since then. I did a few years of commercial litigation. I initially went to the law school to run the Legal Research and Writing Program, but have been on the faculty.

I turned the Velveteen Rabbit into a real person. Not that I’m saying legal writing faculty are not, because they are essential, but because they are sometimes treated as underclass faculty. I became a regular faculty member and so, much to my surprise, I’m now one of the most senior members of the law school faculty. I’ve always loved teaching. I joke that if I weren’t a law professor, I would teach first graders to read.

What courses are you teaching now that you’ve made that transition?

I teach civil procedure related things, so the required first-year civil procedure course. I used to teach Texas procedure but haven’t for a while. I teach complex litigation remedies and I teach a seminar on civil juries. It’s all in the procedure family.

The reason we had you on here is you posted on Twitter about how you and some of your students have conducted a study and survey of Zoom proceedings. We wanted to talk to you a little bit about that project, how it came about and what you found. Can you tell us how you all got started on this idea?

You remember back in March of 2020 when we were all starting to shut down. It was way back on the 13th of March that the Texas Supreme Court ordered that the courts could do online hearings. On the 22nd, they provided a training seminar for judges. They gave them Zoom licenses and taught them how to set up YouTube channels. Texas has a strong commitment to open courts and that has led Texas to nationally be a leader in taking things online and doing it in a way that’s accessible to the public.

I knew that that was going on and I’ve always had a law and technology interest. I watched a few of the hearings and sampled what was available because technologically, what the administrators did was create a YouTube channel. The effect of that is that the active hearings rise to the top, so it’s easy to go to this website. Of course, this being 2020 at the same time COVID shut us down, the Texas courts had one of those ransomware attacks, so this temporarily disappeared.

I was able to see enough hearings that I thought, “There’s something to be learned here.” One of my longtime scholarly interests has been what the trial courts do because often, we don’t see it. Appellate lawyers know it’s often not reversible. It’s hard to even imagine how you would get it up on appeal. Here’s a chance to look at it without traipsing around. In addition, there are a lot of law students who were eager to have some summer work that was legally meaningful.

A lot of their summer clerkships were going away. Dean Collins gave me some funding, so I hired six students. Starting right after finals, between the middle of May and the end of June 2020, they each watched about twenty hours a week of trial court hearings. We had talked about what to look for and developed a form to gather data on, so we’d be getting uniform things. Although there’s also a free-response section, so we don’t lose anything interesting just because we haven’t thought to ask it.

They watched 305 hearings. I told them to choose them randomly because I wanted to maximize how many of the things that I thought would be more difficult to see. We prioritized contested over uncontested hearings and hearings involving evidence over hearings that were just people talking. That was a big enough sample. I don’t think it doesn’t count as technically random from a social science perspective. I feel like we got a good cross-section.

It's easier for certain people to testify or participate in a hearing on Zoom. Click To Tweet

There were almost 50 different counties covered, district courts, county courts, family courts, and probate courts. There’s lots of data and some consistency in what they saw so that you didn’t worry that you were just getting a few wacky outliers. Because it was clear to the judges early on, it turns out that family courts were not going to be able to say, “We’ll put this off until June.” We all thought that the courts would be back in person in June. Those are the innocent days of yore. The family courts couldn’t do that. They have all sorts of emergency things.

The State Bar of Family Law Section put together a helpful training seminar for judges, especially for the lawyers practicing in that area. They planned to only do the emergency hearings, but quickly, the judges realized that it was going well. They had time to do non-emergency matters so they started doing those as well. It’s probably not surprising that of the 300 hearings that the students observed, 198 of them were family law-related in some way. There were a lot of CPS hearings, contested custody hearings, temporary orders, and also contested divorce final hearings and decrees.

That left about 85 of what I’m going to call regular civil cases so non-probate and non-family law civil cases. Those were mostly motion hearings. They were discovery disputes, motions for summary judgment, and motions to strike expert witnesses, which were sometimes tied to motion for summary judgment. There’s a small chunk of them that were cases that had settled, but there were minors involved. An ad litem had to be appointed for the minors and there were hearings and civil cases related to that. I say not counting those, probably about 75 or 80 civil cases that the students watched.

Were they able to observe any bench trials?

Yes, bench trials and family court. I’m not sure if a family law practitioner would call it a bench trial. They were factually contested. Sometimes, interim. Sometimes, orders. A judge without a jury hearing witnesses and making fact findings. In the regular district courts, there are only a couple of them that held trials. Remember, they stopped by the end of June and there have been more since then, but at that point in time, they were only doing it if both sides agreed and trying to put things off if they could. At that point, the delay wasn’t substantial enough that they were going to call them emergencies.

Overall, collectively hours-wise, how many hours of hearings did they watch? I know you said it was over 300 hearings. Do you know what that equates to in the amount of time?

I tried to count it, but I realized that the way that I’d asked for it on the form was hard to tell. Part of what happens is if you click on a link, you arrive at a hearing, but you’re not sure how long it had been going on before you got there. Sometimes, they would get the whole thing and sometimes not. Roughly six students, twenty hours a week. That’s 120 hours times six weeks so a little less than whatever that multiplies out to. It’s in the thousands, for sure.

It was strictly a lot of court proceedings. I know we were a little slow out of the gate to get appellate arguments going. That’s debatable, but they did. That was not something that was addressed within your group.

We were looking at trial court proceedings.

She got a larger sample size to draw from. A summary judgment hearing technologically is about the same as an appellate argument for the most part. You’re not dealing with evidence or witnesses and that sort of thing.

Even between the middle of May and the end of June, you could already see that the judges and the lawyers were figuring out the technology. Early on, you might have a motion hearing. It’s going to be lawyers talking and some screen sharing if there’s a document involved that you want the judge to look at. There was a little bit of trouble with some lawyers. They’re having a hard time getting signed on and figuring out how to get audio feedback if you’re using both your phone and computer at the same time. The judges are figuring out how to do it.

There was the initial steep learning curve from an academic standpoint. I remember this is all around spring break. The Thursday before spring break, we had a faculty meeting that turned into Here’s How to Teach Your Class on Zoom. We were lucky we had spring break to try to figure it out on a Monday. I feel like lawyers are probably about the same. It’s like, “I’m going to have to start doing hearings on Zoom,” and the judges also.

Even by the end of June, except for the occasional lawyer who clearly hadn’t done a Zoom hearing before, the lawyers figured it out. The motion hearings that are just lawyers and judges I suspect have few problems. Everybody’s going to have a tech glitch with their computer. You’re all revved up and ready to go and your audio fails you. If it’s just lawyers and the judge, that’s fixable. I would say that it did not surprise me that that part of Zoom was going smoothly, and it sounds like the appellate ones were as well.

TALP 39 | Online Court Proceedings

Online Court Proceedings: In a lot of ways, we idealize the courthouse. We thought clearly the online hearing is going to be a poor substitute for the real courthouse in terms of access.

 

Even at the trial level, all of the data showed that about half of the cases had some technological problems. It was usually fast and easy to fix stuff like audio feedback. The most common thing that I characterized as a technology issue, for lack of another box to put it in, is people muting and unmuting. Twenty-five times a day, I have to say, “Counsel, you’re still muted.” It’s like every Zoom meeting we’ve all been to. You want to start to say something and it’s like, “I muted. Start again.”

Those all work well. What I was pleasantly surprised at was how well it seemed to work for regular members of the public who are not lawyers and not judges. The cell phone seems to be a game-changer. It’s not the right word because it wasn’t a prior practice. A survey that was done by potential jurors found that only 1% of the people surveyed had neither internet nor cell phone. 99% of the jury eligible surveyed had some way to log into a Zoom hearing.

That’s amazing when you think about that out of all the population in all situations.

It’s not necessarily ideal. Some of them have better internet connectivity than others. There are some other issues I can talk about as we go along if you like. That’s in terms of being able to get in, the technology, the cell phone. I’m not young but people my student’s age live on their cell phones and are adept to multitasking and switching between apps, and that turned out to be good. The other thing that naively I had not thought through is in a lot of ways, we idealize the courthouse. We thought clearly the online hearing is going to be a poor substitute for the real courthouse in terms of access.

What I didn’t think through is there are a number of people, and this was noticeable in the family court hearings, who have a hard time getting to the courthouse. They work jobs where they only get paid by the hour and they only get paid if they’re there. If they have to take time off to go to a court hearing, they missed a whole day of work or people who are the current caregiver for their kids. If they have to go to court and take their kids with them, then that’s hard. Especially for people who don’t live in a city where public transportation can get you to the courthouse, it can be hard to get to the courthouse.

You pay to park and you pay for your lunch or you don’t have lunch or you pay even more money for a bad hamburger in the courthouse cafeteria. It turns out that it’s easier for certain people to testify or participate in a hearing on Zoom. I interviewed some CASA staff members, Court Appointed Special Advocates, about what their experience had been and they said that even putative fathers are more likely to show up for these Zoom CPS hearings. Partly it’s because you can and partly it’s because if you were afraid to go to the courthouse because you had an outstanding warrant, you’re not afraid to log in on Zoom and say, “Nope, not the father. If I had any parental rights, you can have them.”

I should hasten to say that it’s not the way they phrased it. I’m just reporting that they said that more fathers showed up and one of the reasons was a lack of fear of being arrested, but mostly, it’s not taking time off work. The judge told me a story about a woman who participated in a hearing wearing her Walmart uniform sitting in the Walmart dressing room on her break. She was able to participate in this hearing that affected her life without losing work. It has increased access for a number of citizens of Texas.

We’ve heard about one advantage to this arrangement as being the increased access to justice but I don’t think that’s the way that we can see it as the person who’s directly affected as a litigant or a party being able to participate more. When we talked about it here and there on the show before, it’s been more of you can have a lawyer who can easily get from Point A to Point B. Instead of having to travel, they can just Zoom in. There are all kinds of benefits that come along with that. Knowing that story about the person at Walmart gives me a completely new perspective.

I should have anticipated that, but I didn’t, so that was a real surprise. Maybe in a more theoretical way of thinking about it, we had a tendency to think about courts as buildings because you go to the courthouse. The fact that we couldn’t go to the courthouse has helped us realize that in a lot of ways, courts are services. It’s not so much about the building. Although heaven knows, buildings are important. There are times when we ought to be together in person. There’s a lot of symbolic value to the courthouse, which is in terms of what courts do, it has emphasized the service aspect that the courts are providing to all of us.

If you think about the paradigm that many of us learned from To Kill a Mockingbird, that’s the social center of the town, the place where people go, and where they interact. It is interesting when you think about it now. Often, if you go to a civil-only courthouse, there isn’t as much going on. If you do it this way, anybody from anywhere can log on and watch these proceedings, which in some ways makes the courts more open than they would be in the traditional sense.

Even though theoretically, anybody could have gone to the courthouse and gone into a hearing and watched it. It is easier to do that by going to YouTube, or the Houston courts did Vimeo, but the same thing. If you wanted to know about a particular person or hearing, you’d have to still know that it was going on. For a while, they made the docket software. It was free for a little bit. I could get in and see what the hearing was going to be about. In any case, it has made it easier. The flip side of that is that there are some privacy concerns, but from what these students saw, that was handled well.

You’re talking about re:SearchTX.

The privacy aspect is something that I was going to ask about. Were any of your students able to watch when, say, for instance, you got to a sealing proceeding or a closed courtroom, how that worked or technologically, what the court did to make that happen?

The fact that we couldn't go to the courthouse has helped us realize that courts are services and not so much the building in many ways. Click To Tweet

It varied a little bit. If they wanted to take the whole proceeding offline, they would stop broadcasting it. The judge had to know how to do that. One other thing that they were able to see is sometimes, and this was what happened in family law cases and I imagine it could happen in other kinds of litigation, where documents need to be introduced in evidence that have some private information in them. In some ways, they ought to be redacted even in the brick and mortar world because they become part of the record.

If you’re going to pop them on the screen, you don’t want somebody’s social security number, address, and phone number. The students saw a couple of hearings that had just been done, so the document was already redacted. At least one where somebody realized at the last minute, probably the judge, that this was going to be an issue. They recess the hearing briefly and send the lawyers into a Zoom breakout room to work out what would be redacted and do the redacting.

In the meantime, the judge can go off and do something else in another breakout room or just work. When it was ready, they came back, and it just went on with the hearing. In family cases, sometimes the judge, if it is pre-COVID, would talk to a child in chambers like, “Which parent would you rather live with?” They did that non-broadcast. I don’t know if they did it in a breakout room or if they just stopped broadcasting. In Dallas County, there is an emergency court for protective orders that are not related to a pending divorce case that the judges take turns supervising.

I know at least one judge told me that they’re aware that stuff may come up in those hearings, especially if it’s stuff about the kids that you don’t want to broadcast. I was told there’s a slight delay. The judge could see it coming and not broadcast that part. What people are still articulating privacy concerns about is, “Anybody could see my hearing. My neighbors could see my hearing. My boss could see my hearing.” Even though in theory, they could have anyway. They’re more likely to see it this way. Is that more likely to affect people in small towns, do you think?

Growing up in a small town, it seems like it would be because if your neighbor heard you had a court hearing and knew how to get on it, they might be more likely to do it from home where no one would know.

Was it like that cartoon, On the Internet, nobody knows you’re a dog? On the Internet, nobody knows you’re watching your neighbor’s hearing.

I’m picturing like a Gladys Kravitz character that normally would look out the front window of the house. Now, let’s log on and see everybody’s business.

You have to have at least some level of training and sophistication to be able to do that, though. Granted, we do have a YouTube channel list for all the courts in Texas. Once you find that, if you know the details of a hearing, you can find it and watch it, but you still have to know about it, know what’s there, know about the hearing, and put a few details together to be able to jump in. The truth of the matter is these are public proceedings, too. The way that people avoid having public proceedings is to work them out privately.

They’re listed by court number and county. One of the challenges for the students at first was to figure out which court numbers were civil instead of criminal. It’s the judge’s name, too, but it’s not listed by matter. It’s listed by court.

Another tricky part of it is what order is the case going to be taken up in? If it’s here in Travis County, you’re going to get a docket call and you might be 1st or you might be 10th. It takes a little more effort than just logging on to YouTube to watch a specific hearing. I’m not unsympathetic to privacy concerns. We would say that the interest in open courts outweighs here any privacy concern.

From the student observer’s perspective, the Zoom waiting room seemed to work well for courts in terms of scheduling multiple hearings for the same 9:00 Monday morning or whatever. It appeared that lawyers could go about their business. A lot of the courts, especially the ones who thought it through at the beginning of the day saying, “This is the order I’m going to hear these in. It’s usually taken about this long so don’t go anywhere. It’s going to be about 10:30 when I get to you.” I would guess that, from the lawyer’s perspective, that’s nicer than having to drive to the courthouse and sit there for 1.5 hours. Am I right about that?

Absolutely.

That would not be unreasonable to expect.

TALP 39 | Online Court Proceedings

Online Court Proceedings: Maybe in a more theoretical way of thinking about it, we had a tendency to think about courts as buildings because you go to the courthouse.

 

I’ve been impressed with the times that I’ve had this come up. It has not been in Travis County. It’s been in Harris County where there are busy district court judges and they’ve been able to give windows of time. The court coordinators are the unsung heroes in this process because they have mastered the art of the breakout room, getting people reconnected or connected, and also, the timing, keeping the trains running.

They’ve space things out differently, being careful about how they’ve allocated time. In my experience, not allowing people to just go on and on overtime. I’ve had a few where there’s been maybe 3 or 4 other matters set for the same time. It’s been an improvement time-wise over certainly having to go to Houston for a hearing, sit around for half a day, and then have to travel back. The advantages there are obvious.

It must be nice not to have to bill your clients for that time as well. I’m sure they’ll appreciate it.

All of our guests that have talked about the access to justice component of this, the side of it that they cite are people who couldn’t afford to pay a lawyer to go down to Houston and drive back and all that.

One of the things you’ve heard repeatedly is people saying how helpful it is to both the lawyers and the clients, especially a client who couldn’t afford to pay you to drive from Austin to Houston, sit for a couple of hours, and drive back. A lawyer who couldn’t take a case that involved that but could take one that involved a 30-minute hearing on Zoom. Isn’t Harris County almost as big as Rhode Island? The driving time alone for that matter. My daughter lives in Austin, so we can take 1.5 hours to go the twenty miles from our condo to their house in rush hour traffic, especially if the hearings are quite workable and fair. To be able to take the time for the hearing instead of the hearing plus driving plus waiting seems especially helpful.

This is a little bit of an aside, but the timing of our discussion is interesting because the Travis County District Judges announced that they were going to try and amend the Travis County District Court local rules to permanently provide for remote video conference hearings and, even in certain situations, trials. A lot of the drive behind that proposed rule change is these kinds of efficiencies that we’ve been talking about. Practicing here in Austin, I can participate in a hearing in Dallas and spend the rest of my day working on some other client’s matters.

It’s way more efficient for the client or the lawyers. It’s one of those things that we would have done but, for the pandemic, I don’t think so. Not anytime soon. If we’re looking for something good to come out of the pandemic, this is a big bright spot in the long run. Whether that means that remote jury trials are going to take hold or not, that’s a little bit beyond the scope of what you all were dealing with in your study, professor. That’s a whole other podcast episode.

I was interested to see that Travis County had done that. I like the idea of county-wide rules because one of the things I’ve seen in lawyer comments is that it’s frustrating to have to learn the Zoom rules of every court separately. To the extent, authority is needed to do some of the remote things that are helpful as well. Jury trials raise another whole set of interesting issues. One thing to think about when you decide to have an episode about that, later on, is that it’s not necessarily all or nothing. For example, Judge Miskel did the summary jury trial, jury selection experiment. That’s different because for summary jury trials, what the lawyers are after is a cross-section because they’re trying to evaluate the case more than sympathetic leaning jurors.

In terms of technology, it worked okay. It’s harder to figure out a place to put a potential jury pool together. It is conceivable to do jury selection online, and then do the trial with precautions in person. Although having said that, there are going to be issues, both about are you accidentally leaving people out of the jury pool because they don’t have the technology or the bandwidth to participate in jury selection? Conversely, are you losing people who are afraid of COVID in some disproportionate way? However, you do that, it raises all sorts of issues at the pre-trial hearings.

It does. I’ve talked to a few trial lawyers about that idea and one thing that they don’t like about the online jury selection is they miss the physical proximity and the nonverbal part of voir dire. They say they’re afraid it’s irreplaceable in that context sometimes.

Lawyers make the same comments about evidentiary pre-trial hearings on Zoom and that whole thing is an area where we need more testing information. You probably are seeing people’s faces better on Zoom than you see them in the courtroom and it may even be easier to keep track of juror number one, juror number two, juror number three and/or witnesses in my pre-trial context. If it’s something that the judge is going to decide, the judge has a head-on view of the witness. Most of the time the benches are over here so this is where they see the witness.

One thing is their body language. You would show up the rest of your body that’s inconsistent with what’s on your face. Most of all, studies seem to show that demeanor, interpretation is not reliable. It’s about how somebody is acting compared to how you would expect a truth-telling person to act. We’re not good at that. It has a lot of cultural assumptions baked into it. It’s possible that an upper-middle-class white person expects certain mannerisms or effects or eye contact or whatever. It’s different from what other cultures might exhibit when they’re being perfectly truthful.

There are some worries. There are worries like it flattens the effect. The video may lessen the emotions that are involved in the testimony. It may make you seem less involved. I didn’t study criminal cases, but I know the criminal defense bar is worried about that issue. In our hearings, there were some cases where the disputed fact issue is person A says this, and person B says that and it’s going to come down to who you believe and that is more worrying. Those are the kinds of hearings that, until we are more confident about video not skewing that, you might want to do it in person when you possibly can.

Winging it is always one step harder on Zoom. Click To Tweet

On the other hand, I think about a lot of cases, maybe more particularly like commercial cases, it’s not as much about witness testimony and credibility. There are multiple witnesses. There are usually documents. There are other things that testimony can align or not align with and maybe is less crucial in those settings, but it is something to worry about. On appeal, it’s a transcript anyway.

It is. It does raise an interesting question because at a certain point, like our podcasts, a court can certainly record all Zoom proceedings. What do you do with that? If anything, our rules are not set up to deal with that but it brings about an interesting point. If you’re on the Court of Appeals on some issues, I would think you feel like, “I can watch the video and come to my own conclusions based on the standard of review that the trial court could have come to,” which creates a whole lot of questions. I don’t think we’re at that point yet. If this sticks around, it is a place where that becomes interesting.

That is dangerous, talking about the potential there of appellate courts sitting in super juries. If you watch a video of a witness as an appellate justice, hypothetically, how do you not draw your own conclusions about that witness’s credibility if they’re doing, especially, some of the things that you’re mentioning, professor, making eye contact? They’re looking away. They’re looking at something in their hand, looking away while they answer a tough question, things that might be seen as signs of untruthfulness.

The temptation not to give the deference to the trial court and the fact finder that you’re supposed to when you can look at it yourself, we’ve seen it a little bit in federal court, in summary judgment hearings that involve a video. Scott versus Harris, the Supreme Court, looking at the police car dashcam video and saying, “Justice Scalia, I can tell by looking at that. It’s a matter of law. He was endangering the public and/or members of the law enforcement.” It’s like, “Not everybody sees it the same way.” That’s a video. It would be worrisome. It’s human. If you can look at it, you’ll think, “They’re not believable.” Therefore, the verdict was contrary to the way the evidence presents.

We should be clear though that the YouTube channels, there is no ability for the person or the viewers unless they do something that’s completely improper and screen capture and audio capture against the rules and be subject to sanctions. Those proceedings are not retained by the court. I’m told that as a general matter, they are trashing those videos. They’re strictly there for open court purposes. If we are going to continue on this path, then it would make sense that we might need to address that in a formal rule of some kind to say, “We’re going to preserve the appellate way of doing business. We’re going to view all these cases through these lenses of standards of review. We’re going to preserve that tradition and the rule of law if rule of law still exists.”

To preserve that tradition, we’re not going to permit courts to retain that information. I don’t know what the rule would look like, but it raises that question. How do we deal with it? It’s something that we’ll have to work through, I suppose, at some point in this. Maybe it would be a good idea, I hate to think that we’re even talking in these terms, that a COVID anniversary return engagement from David Slayton telling us what the latest and greatest on jury trials is. I’m going to put David on notice. We’re going to ask him to come back.

That’s a good idea. There are a lot of issues that are in the background waiting to creep up that we haven’t gotten to yet, especially when you start to get in the context of a jury trial. Under the rules, in theory, there’s a lot of things that can be forced on the video. There are some reasonable arguments about why that’s problematic in a whole lot of different types of cases. We don’t know how that works. We don’t know what state or federal constitutional rights that might implicate and how that could play out in the courts. An observation that someone made earlier was, at this point, that challenge would end up at the Texas Supreme Court. Who are the ones that wrote the rules that would allow you to do that? It’s an interesting question on how those things go about.

That’s come up in response to some arguments that I’ve heard about whether we’re going to be forced into virtual jury trials. The right of confrontation comes into play more in the criminal context than anything to do with civil cases. Professor, you had something to say about this too. I believe the context of that was, anyone raising that argument needs to be mindful. If you’re going to object to being forced into a remote jury trial, you need to keep in mind that the body that approves this procedure is going to be the final arbiter of your connection. Did you remember the context? You mentioned a name.

In criminal cases, they have the confrontation clause argument, which is different. In civil cases, it would probably have to be some kind of due process argument. I don’t think a naked argument, having to do it at all, is likely to succeed, especially given the fact that it is the court that adopted it. Chief Justice Hecht has been talking nationwide about how well it’s working. In preparation to talk to you all, since I know it’s an appellate podcast, I was trying to think about appellate issues because that wasn’t part of what we were observing.

I want to hasten to say that in a high percentage of the cases the students observed, things went well. There were some where, for example, there was a witness who had audio problems with Zoom that never quite got fixed. The court reporter had to keep saying, “Could you say that again?” I could imagine that leading to an argument. I’d be interested in your views as appellate lawyers about what you would do to preserve that. You object, at the time, and then you file a motion for a new trial making the argument.

Another thing that can happen on Zoom, which might even make people want to have a recording available, is audio lag. I talk within a second or two before everybody else hears it, that and also the fact that we’re not in the same physical place. We don’t have physical cues that somebody else is about to talk. You get people talking over each other, that’s another challenge for the court reporter. The other thing that the trial judges have had to figure out how to deal with is when a lawyer asks a question, the opposing counsel wants to object to the question. Because of the audio lag, the witness has already started answering the question before opposing counsel even hears it and keeps talking.

I can imagine questions about whether you got that objection fast enough to preserve error. I don’t know. Some judges, because the visual work sometimes is better than audio, have adopted their own court protocols where everybody’s told to make a sign that says, “Objection.” Rather than say, “Objection,” you hold up your objection sign and everyone’s been instructed to stop talking when you see that on the screen. It’s conceivable that there’s going to be some problems preserving error, although how often is the admission of evidence issues like that going to be reversible?

The thing it makes me think about is that the second part of TRAP 44.1, where it prevented the appellant from properly presenting the case to the Court of Appeals, I would think at a certain point, there are things that could rise to that level of, “I couldn’t make a record on this sufficient to get you to review it. I need a new trial.” That seems like where some of those complaints could lead, depending on how critical or important they were.

TALP 39 | Online Court Proceedings

Online Court Proceedings: We are being given a window into the problem that it creates for the family courts that many people can’t afford counsel, which is not a Zoom problem. Zoom shines a light on it.

 

If it’s that bad, the judge will say, “You’re right. We’re going to have to try this again another time.” Maybe not if it’s a jury.

This is where the appellate courts’ experience of having more arguments will possibly inform the result. One of the issues that they’ve struggled with is the Supreme Court with nine justices are all asking questions at the same time. They’ve had to learn to go in some kind of not necessarily order, but at least, pause, take a breath, ask your question. One thing that I’ve heard them doing is saying the counsel’s name to acknowledge that they’re about to ask a question, leaving some dead space in between the question and the answer and the next question.

The courts, or at least the appellate courts, are educated about what the issue is going to be in terms of people talking over each other because they’re experiencing the same sort of dynamic. It has been oral arguments not to admit in an ordinary Zoom call. I would hope that we wouldn’t have to get to that in terms of resolving that issue and not wasting everyone’s time and trialing a case for the second time. As we’ve gone, it’s been nice, in a way. I suppose that we started off doing something less than full-on evidentiary hearing from trials, at least in the beginning. People are used to doing this. They understand how Zoom works. They know they can’t talk over each other and have a record made. At some level, it’s up to the judge to preserve the order of presentation and decorum in the virtual courtroom.

To the extent that a lot of what the students were watching, evidentiary hearings, were in the family court and all of them were something where the judge was going to decide. It’s more about whether the judge could hear than how beautiful the record is. The record will become an issue on appeal though. Maybe it is the appellate rule question that will come up. I want to emphasize that we’re talking about the problem-child cases. Most of them went smoothly. Although there were glitches, usually somebody forgetting to unmute themselves, the judges quickly became the experts on the technology because they had done many hearings. They became almost like tech support for the lawyers and parties.

There are lots of student observations where it’ll explain how the judge talked somebody through how to connect or how to get rid of the audio reverb or suggested that you switch from this to this. The judge’s staff became adept at helping with the problem. The other thing is some of the hearings that were most difficult involved multiple parties. I suspect that those were difficult all along. We are being given a window into the problem that it creates for the family courts that many people can’t afford counsel, which is not a Zoom problem. Zoom shines a light on it.

Did you end up with any takeaways or distilled patterns of things that lawyers maybe did well or certainly could do better to make Zoom proceedings overall more successful?

Yeah. I think so. My biggest takeaway is to plan ahead, which would have been my big takeaway for lawyers anyway. The Zoom context adds more things to think through. You’ve always worried about what you wear to court. The top half of your body has something professional-looking, but you also think, “Where am I going to sit to appear in court?” Especially early on when most people were still appearing in court from home. There were a couple of hearings where the students commented that the lawyer’s background was messy. They wondered if the judge would subconsciously make inferences about how careful you were based on that. There was one where a lawyer sat in front of a big lavish wine case in a case where they had an impoverished client and the student wondered why people were using that stupid beach virtual background for a court hearing, “Why?”

More to the point, even thinking about the lawyer’s oral arguments. You at least sketch out and practice your argument ahead of time. You should way do that for a Zoom call. Winging it is always one step harder on Zoom. In fact, the students claimed that they could tell the difference between a lawyer who had practiced their argument on Zoom and those who hadn’t. You know where to look. Also, knowing your argument. The lawyer who’s arguing like this is not impressive. Remembering to talk slower. Remembering to leave those pauses to catch up. You also always should have prepared your client for what to expect, but now, you prepare them for what a Zoom hearing is going to be like.

Prepare your witnesses to testify, especially if they’re not going to be in your space with you. What is it going to be like to testify on Zoom if you’re going to need to get documents introduced into evidence? You always would have worried about what are the predicates for admission of this document. You’ve got to remember, if the witness you’re going to use to introduce the document is all by themselves, you’ve got to figure out a way for them to be able to tag what they’re identifying as the same thing everybody else has.

A lot of lawyers, this is something that the courts help with also, would set up systems where the documents for an evidentiary hearing were exchanged in advance. Some courts did email. Some used drop boxes. From an advocacy standpoint, especially if it’s a long document, you need to prepare that. The judge is not going to be happy if they sit there while you’re madly scrolling through a 40-page thing or a 200-page financial document trying to find the thing you want. At a minimum, it needs to be bookmarked so you can go to it right away.

Years ago, a Wisconsin law professor named Marc Galanter wrote an article called Why the Haves Come Out Ahead. There are certain reasons that people with resources tend to do better in a lot of legal ways that include litigation. If you can afford to go to your hearing, whether it’s two lawyers or a lawyer or an admin or a paralegal, for long documents, one of the things the students saw that seemed effective was one person is questioning the witness, as always. They call your attention to paragraph three on page four.

The other one has signed in their computer or is screen sharing and either they have used that advanced screen share feature that will let you move a green box around a text or they’ve made PowerPoint slides that have the crucial parts of the language on them. By doing that tag-team approach, that makes it much easier for the court and everybody to know what you’re talking about. For God’s sake, learn to use screen share. There were too many lawyers, especially early on, that did not get things into evidence because they had not figured out how to share their screen. Sometimes the courts would help them with the workarounds. It’s like, “You can’t figure it out. Email it to opposing counsel and they’ll share it for you.” Is that the way you want to be sharing documents? Pretty much, all of that stuff is about planning it.

The other thing to plan ahead if you’re not going to be with your client is you need to figure out a backchannel for attorney-client communications. If they’re sitting next to you and you’re using the same computer, you could mute if you remember to do it and have these little conversations that you would have at a counsel table during a hearing. For longer conversations, sometimes the court would send them into a breakout room. For things that are not going to merit that, you want a text message or you want a Slack channel. There’s lots and lots of technology now that gives us ways to do that. You don’t want to be in the middle of a hearing and suddenly go, “I need to have a private word with my client.”

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Don’t do it using the chat feature in Zoom.

That’s words to live by, for sure. Lawyers who have done enough hearings could understand how the breakout room and waiting room features were, but you need to know that as well.

Don’t wing it both from a preparation perspective and don’t let your first time on Zoom be during your hearing.

I would use the same equipment that you intend to use to participate in the hearing, the same headphones, the same whatever. There are still lawyers who are having their first Zoom hearing. I would talk to somebody. Get a friend to let you practice. I’ve learned the hard way that I forget to look at the camera. I make thinking faces and things like that and it’s perfectly human. As it goes by, we don’t even notice it because that’s what people do, especially somebody who’s not feeling happy and sympathetic. I suppose another thing a lawyer might want to worry about for evidentiary hearings are ways to make sure that nobody is coaching the witness. They are in the room by themselves. They don’t have a paper that they’re looking for.

Trying to figure out how technology is handling what we would do in person. In-person, you might invoke the rule. People who are going to be witnesses go sit in the hall. There’s no “go sit in the hall.” You can put them in a waiting room, but all that does is keep them out of the courtroom. If they wanted to cheat, they could pull out their phones and watch the broadcast on the hearing. It’s hard to enforce.

One judge suggested that in terms of there’s nobody else there, you have the testifying witness take out their phone and turn it 360 to prove there’s nobody else there. Also, give them a Zoom-specific oath. “There’s nobody here with me. I don’t have a piece of paper. I didn’t watch the hearing when I was in the waiting room.” I suppose in real life if somebody who testified, probably it happens. We’ll go out and talk to that witness who’s in the hallway after the rule has been invoked and tells them what somebody said. It’s not unique to Zoom, but being aware of that is another thing I would recommend to lawyers who are going to have an evidentiary hearing.

Those are all great tips and we appreciate you bringing those up to our readers. The evidentiary stuff doesn’t affect an appellate argument, but the preparation and practice and all that is spot-on. What I’m taking away from a lot of the tips you gave is this is a brave new world that we’re in. You can’t observe on Zoom or remotely the things you can observe and enforce and control in a physical courtroom. We’ll have to adapt at some level. I wanted to ask you quickly about the result of the research project and the paper that you’ve put together on it. One of the reasons I wanted to bring it up was because it was the first time that our podcasts had been cited in scholarly work.

It deserved it, right?

Jody and I can’t take any credit for it other than one of us decided that it would be a good idea to have Judge Miskel on the podcast. She did all the intelligent talking on that episode. It was nice to see that. That keeps us going a little bit longer than if we’re going to start getting cited in a scholarly paper. Are you continuing to develop the paper? What are your plans for it?

That particular paper I wrote because one of my SMU Law School colleagues is involved with the ABA Family Law section’s journal Family Law Quarterly and asked if I would write up my results for them. Because we know two-thirds of the cases were family law cases, I have focused initially on those. That article is coming out in Family Law Quarterly. What I haven’t written about is all of the cases together or the regular, the non-family law civil cases. I don’t know that they’re that different, except that on the whole, they were even better. What’s coming up next are a couple of directions. One, as the state does, we can’t let the jury trial die. Jury trials are important. I’m not sure what that’s going to look like and what the concerns will be. I’m keeping my eye on that. It’s too soon to study too much.

I will dig into the experimental literature, which is mostly in the criminal law context, having to do with if there are different perceptions of video and live and some of the demeanor evidence stuff. The other thing is to try to think through some of the longer-term issues. I don’t think we would have ever done this. For COVID, we would have had committee meetings for years and various stakeholders and nobody would have wanted to spend the money on it. We’ve done it and we see that, technologically, some things work well.

Thinking about the kinds of hearings that work the most easily are things like status conferences, uncontested stuff. Why would we ever make anybody drive for an hour for a five-minute data conference anymore? In other kinds of uncontested hearings, there are things that are lawyer arguments. Even some of the contested things go quite smoothly. The more parties there are, the more of a problem there is when people talk over each other. Even some post-hearings went fine, things where it is about credibility fights between witness testimony.

I don’t know how we would put our finger on it, but there are some things where being physically in the same place or physically in the courthouse seems important. Suppose that the citizens haven’t started thinking it through yet. Suppose we go back to a world where it’s safe to have in-person hearings. We’ve realized, for example, that for a witness who would be difficult to attend in person, maybe they’re out of state and couldn’t possibly, maybe it would be a big hardship, we let that person testify virtually. We’ve realized it works.

TALP 39 | Online Court Proceedings

Online Court Proceedings: Plan ahead. The Zoom context adds more things to think through.

 

What impact is that going to have systemically? Is that going to create a two-tier system? Are people going to take the in-person testimony more seriously than video? There may be some data from video deposition being used to trial. I don’t know. Rich people get in-person and poor people don’t. For lawyers, suppose you’re set in two courts at the same time. You’re set at 9:00 on Monday morning in two different courts. If you had the option, would you choose to appear virtually in one of them if you knew the opposing counsel was going to be there in person? I’m trying to think through some of the long-term implications, but it’s too soon to know what exactly I should be looking for.

With your permission, we’ll make available a copy of the paper entitled Observing Online Courts: Lessons from the Pandemic. That’ll be instructive to the folks that are reading this. It’s certainly an interesting read. We’re going to continue to learn from what we’ve been going through. We will adapt and we will learn. The work that you and your group have done to capture what’s going on and has gone on in the virtual courtroom world is to be commended and we appreciate that.

Thank you. I’d be happy for you to share the paper. I had worked at SMU for so long that I have a first-gen email address. You probably don’t remember but there was a time when, technologically, you could only have eight characters before the @ sign. SMU arbitrarily gave everybody the first initial of their first name and the first seven letters of their last name. My name is Elizabeth. My email address is EThornbu@SMU.edu. I’ve got a lot of information about observations. I don’t have as much information about how it has felt from the attorney’s perspective. If anybody wants to shoot me an email, that would be awesome.

Thank you for offering that up.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About Beth Thornburg

Professor Thornburg teaches and writes in the area of civil procedure and alternative dispute resolution. Drawing on her experience with civil rights and commercial litigation, her scholarship focuses on the procedural fairness of the litigation process, especially at the pleadings, discovery, and jury charge stages. She also writes and speaks in the areas of comparative procedure, online dispute resolution, and the intersection of law and culture.

Professor Thornburg’s articles have appeared in a number of prominent law reviews in the U.S. and abroad. She is the co-author (with Professor Dorsaneo) of a study guide for Civil Procedure and two Texas procedure casebooks, and has contributed chapters to books on civil procedure issues in consumer law, sports law, computer law, and classic civil procedure cases. Her most recent book is LAWTALK:  THE UNKNOWN STORIES BEHIND FAMILIAR EXPRESSIONS, published by Yale University Press (with co-authors).

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