TALP 5 | Remote Law Practice

 

A fundamental shift is happening in courtrooms throughout the state in light of the COVID-19 pandemic. More and more judges have taken to allowing remote appearances to promote continued social distancing and prevent the spread of the coronavirus. In this episode, Todd Smith and Jody Sanders speak with Judge Emily Miskel of the 470th District Court of Collin County, Texas about her experience with integrating remote hearings through technology. As more courts adopt these practices to keep their dockets moving, it’s important to get more familiar with the technology and decorum for this “new normal,” so don’t miss out on the wisdom that Judge Miskel has to share.

Listen to the podcast here:

Zooming into Remote Law Practice | Judge Emily Miskel

If you’ve been following anything about Coronavirus coverage in Texas and the impact that it’s had on the courts, you’ve probably heard the name Emily Miskel. In fact, if you’ve listened to our show, you heard it last week because Blake Hawthorne name-checked her as a person to follow to learn about doing Zoom and remote proceedings. She is the judge of the 470th District Court in Collin County, and we’re thrilled to have her here today. She’s in high demand. I’ve already seen her name in another podcast talking about Zoom hearings, and then she did a YouTube show for the State Bar. We’re thankful that she’s here joining us to talk about remote proceedings. Hi, Judge Miskel.

I’m glad to be here. Thank you for inviting me.

A lot of our readers probably are appellate lawyers like us and may not be as familiar with you. Would you give us a little bit about your background and who you are? 

I have been on the trial bench since 2015. Back in 2015, Collin County got two new district courts created because of our rapid population growth in Collin County. Governor Abbott appointed me to one of those newly created district courts. I ran for election in 2016 and I’m on the ballot again in 2020. Before that, I practiced family law in Plano and for a brief tiny window of time, after I got out of law school, I did IP litigation before switching to family law. That’s an odd switch. I’ve always loved family law, and one of the things I’ve liked about it is that there’s a lot of court time and you’re not always on the same side of the case. It’s a good practice to stretch your brain. I joke that you’ve got to know about everything because whatever it is, you’ve got to know how to value it and cut it in half.

How did you switch from IP to family law? That is quite a switch. 

My background is in Mechanical Engineering. I used to design and build oil and gas pipelines before I went to law school. Coming out of law school with an engineering degree, you get pigeonholed into doing intellectual property work, but I wanted to be the kind of lawyer that goes to court a lot. In looking at what kind of practice areas go to court a lot, family law was one of those that fit with what I wanted to do.

We’ve seen over recent years an increase in the judiciary’s use of Twitter here in Texas. Don Willett was the Tweeter Laureate of Texas, although he’s certainly missed since he joined the Fifth Circuit and is really not active any longer. I got to know you online through your Twitter presence. I’m in Austin, Travis County. I don’t have any connection to Collin County, but it’s nice to be able to follow and get to know a judge from a different region of the state. I’ve admired your commitment to technology and the way that you’ve used Twitter to disperse information about your court and the way things have been going on, particularly under the present circumstances with COVID-19. Do you have some good feedback on that?

It’s been interesting because I do social media for a couple of reasons. Obviously it helps with campaigns and things like that, but I do it because I like that you can be involved in a community of people who share interests with you. Surprisingly there is a large judge presence on Twitter, so I got to know judges from Georgia, West Virginia, and Michigan. It is a great community-building tool. Like Justice Willett, I’m a fan of civics education. I like the educational outreach of it. I have always done it because I personally get a lot of joy out of it. But then you’re right, by having steadily participated in Twitter for 10 years now, when I needed to disseminate information, that was already built. It has paid off during this month of March 2020, and it’s been great that that was built and I’ve kept it up, because it has been useful even though that’s not why I designed it, but it’s been great.

Why don’t you go and tell everybody what your Twitter handle is so they can give you a follow if they’re not already? 

In Texas, all files and court records are already 100% electronic. Click To Tweet

It’s my first and last name, @EmilyMiskel.

That’s the same way I first got to know you. We met in person in 2019 in Austin. You’ve been great about being transparent with your court and putting everything online about what’s going on in your court. How has the COVID-19 stuff, the closing down of courtrooms, all that affected your court? How have you utilized technology?

It’s nuts how fast we were able to get this up and going. In talking to people in the legal system in other states. I think Texas had one big advantage going into this, which is that all of our files and court records were already 100% electronic. I was already signing orders electronically. I was already using electronic case files and reading pleadings electronically. That part of the workflow, I don’t need paper in my job. The part that we had to creatively figure out how to replace was the place that people go to be heard and to communicate out loud. How can we replace that?

This came up, so the week of March 9th through 13th was spring break for a lot of our school districts. Luckily, our courthouse had very light dockets scheduled anyway because most judges and lawyers have kids that were out on spring break. It was Wednesday and Thursday of that spring break week where we started to realize kids were not going to come back for school. Specifically in family law, that’s troublesome because all of our orders define parenting time exchanges by when school starts and ends. We knew we were heading for a situation on Wednesday and Thursday before the kids were supposed to go back to their other parent on Sunday. The way that schools talked about it, they said, “We’re just extending spring break.”

The parent who had the kids for spring break was like, “I get an extra week,” and the other parents were freaking out. We can see that train wreck coming, and having practiced family law, I knew that the lawyer’s phones were blowing up with calls. We rushed to get out a standing order that said, “Follow the originally published school calendar.” I was texting with my judge friends in Dallas and Tarrant County and they did the same, and then the Supreme Court did it. I think that headed off a lot of problems and saved people a lot of money in legal fees. I’m glad the Supreme Court helped us out with that.

That came out quickly. I had seen on our local lawyers Facebook group, that was the big topic of discussion for about three days. All the Supreme Court orders came out and everybody was happy because I think they were all afraid that it was going to be a huge issue.

It was a proactive effort on the judiciary’s part, particularly the Supreme Court taking the lead on that with putting out the first emergency order in quick succession with some of the others. For those of us that don’t do family law, we weren’t thinking that would be an issue. I admire the leadership that you’ve taken and the Supreme Court has taken on getting that addressed quickly to try and avoid or at least minimize the disruption to the system. We’re seeing now, judges are getting to be Zoom experts. All over the state, every judge has had a Zoom account made available to them, and I’m seeing more and more webinars and resources being put out there. I know that you and my law school classmate, Judge Roy Ferguson, did a webinar. I think that’s fantastic. I know that one of the big concerns with doing online court was how to maintain open courts, and that’s been solved apparently through the use of a YouTube live link. Is that right? 

It’s been interesting how I got looped into all of this. I am newly on the Texas Judicial Council, which is a Supreme Court committee that has judges from different levels and we discuss different judicial issues. One of the committees I’m on is the Data Committee. I knew David Slayton through the Data Committee of the Judicial Council, and he’s the head of our Texas Office of Court Administration. Because we have that connection, when he was trying to search for a video conferencing platform that would meet the needs of judges, he looped me in at an early stage and I was able to join some of those early calls with him and Blake Hawthorne to try to figure out what service is going to do the best and have the features we need. He negotiated the licenses and started rolling them out to us right away.

He has done so much work to coach the judges to get everyone to accept it. Lawyers and judges don’t have the reputation for loving technology. I think judges can fairly be accused of hating and fearing new technology. I was pessimistic about, judges are going to start using Zoom? What are they going to do with YouTube? I don’t see them adopting it and I have been profoundly impressed that all ages of judges, urban, rural, they want to do this. We all also understand that the number of cases that we hear, our docket numbers are massive. There are no magic future days to reschedule everything to. Everyone was motivated because the numbers are coming. We have to deal with them one way or another. I have been pleased with the judges rolling it out, doing YouTube. I thought there were going to be three of us doing it. I went and tried to subscribe to every court channel that was on the OCA list and there are so many of them. JP’s, district court, and appellate court. I’m impressed and I think everyone has pulled together to achieve the highest levels of our professionalism. It’s actually been a good time to be a lawyer or to be a judge.

TALP 5 | Remote Law Practice

Remote Law Practice: It’s been tough getting judges to accept video conferencing. Lawyers and judges don’t necessarily have a reputation for loving technology.

 

What have you seen in terms of volume in your court versus your typical week, having people come in and do live hearings? Have you seen steady volume since you started doing Zoom hearings?

I’ll go over some numbers for you. In our district court, we get about 2,300 new cases a year, each judge. If you break that down, assuming there are twenty business days a month, that means we have to dispose of nine to ten cases a day to stay even with what gets filed. I have studied what was the right amount of things to set every day. On an ordinary day, I set three final trials every day, and then I set six to seven other motions that take about an hour. On average, I’m setting four days’ worth of work for every day. Generally, that’s about the right amount. Some days everything settles, some days everyone wants to go. With Zoom, based on the number of technical difficulties everyone has at the beginning of their call and the slow start and all that, what we’re setting is four one-hour blocks each day.

Right now, I’m special setting each of the four blocks. but, for example, everything canceled today and I had nothing. That wasn’t a good use of my time. What I don’t have is good data on is, do I set double the amount of things on Zoom, but then what if they both want to go? Whereas in my normal day-to-day court, I know what’s usually going to go or not. I don’t have that same rule of thumb for Zoom. I’m hoping that I will increase in efficiency as we do more of these. What we’re doing is giving the first shot at those spots to things that are genuine emergencies, endangerment, and safety. If there’s room left over after the emergencies, we’re doing our regular stuff as much as we can because I’m trying to get through as much as I’m able to do. I hope that we’ll be able to start setting multiple things per block, but it’s just slow going as we all get used to this technology.

What’s the process been for someone to get a hearing set over Zoom? How’s it different from the ordinary process? 

It’s not. My court was very electronic. Coming from a technology background, when I started in my court, every time I identified a process that involves somebody walking around with a sheet of paper, I’m like, “We have to stop doing that.” In my court, we went to electronic pay sheets for attorneys on court-appointed cases. We went to electronic scheduling. My coordinator sets everything by email. We didn’t do all of that in anticipation of something like this happening, but when something like this happened, we were lucky because we’re mostly electronic all the time anyway. My court coordinator, her normal work computer is a laptop. She took it home. She’s still responding to all the lawyer emails, which she did everything by email in the first place. She’s had a lot more communication with lawyers because she has to reset everything. Process-wise, it’s no different than ordinary. The attorneys have been very understanding and accommodating and everyone’s worked together well.

Let’s talk about the nuts and bolts a little bit because I know I haven’t ever done a Zoom hearing. I’ve done some remote depositions and probably a lot of lawyers are like that. The most important question to start with is, do we all have to stand up at the beginning? Can I just wear my suit on top and my normal non-work attire and slippers at my desk without the judge seeing?

I wanted to interject there because that was a question I was curious about the answer to also. What is the dress code for a Zoom hearing in your court? 

I still wear my robe because I want the clients to know that I’m a real judge and sometimes I can look young. When the clients are older than me and I’m sitting there in a t-shirt, they might not feel the appropriate sense of legitimacy of the court. I look professional, I have my courtroom as my background, just to remind everyone this is still real court, but I don’t know if you saw the order that I published on Twitter that said, “I’m suspending a business dress code.” I don’t notice what people wear and I wouldn’t notice if you were wearing a t-shirt. I don’t care in my court.

Speaking of Judge Ferguson, he’s a good judge friend to me because we are alike in our love of technology, but we differ on a lot of things. He’s fun to discuss things with. He was saying that he expects a professional dress code because it’s already hard enough to believe that this is real court and has real consequences. If we’re all just lounging around on the couch in our t-shirt, maybe it’s extra hard to remember, “This is real.” I can see it both ways, but it’s hard enough to work from home and homeschool your children and do court. I don’t care, as long as you’re there and we can hear you, we’ll get it done.

It's hard to work from home and homeschool your children while still appearing in court. Click To Tweet

So basically, check with the judge before you show up as to what you need to have on.

Right.

Maybe some judges will post temporary guidelines for how to conduct this. 

This is a good question and this is a hard part. A lot of judges were asking me, “Are you publishing Zoom procedures?” You mentioned publishing written dress code procedures. The other thing about all of this happening is that, lawyers who have cases in multiple counties, you’re trying to remember twenty different judges, and who wants exhibits emailed a business day before the hearing and who wants them emailed by 5:00 PM before the hearing, and who has a dress code and who doesn’t. The biggest frustration I can imagine coming out of this is just the burden on the lawyers to keep track of all those policies. I have erred on the side of not having policies and being flexible because I don’t want to put out five more pages of written instructions that everyone has to remember and we have to remember. I understand wanting to give people guidance and help and teach, which is great. I also don’t want to contribute to the burden of having to remember twenty sets of local rules.

I don’t know that it rises to the level of an emergency order, but maybe the Supreme Court will offer some guidance on this.

You know, you guys need lawyer robes.

That’s right, with the wigs and everything. That way, I don’t even have to fix my hair.

You mentioned emailing exhibits. That was one of the questions I had and I think the appellate lawyers are going to be interested in. What is the way you make a record in your court when you normally would have to hand this stuff to the court reporter and go through that whole process now that step is cut out? 

What we are doing is my court reporter, court coordinator, and I are all on a Dropbox. What we’re telling people is email your exhibits to the court coordinator, copying both sides at least an hour or two before your hearing so she has time to make sure she sees your email and saves it. She will save all the exhibits to the Dropbox that my court reporter and I have access to. We ask that people name the files descriptively. Exhibit M1, mother’s requested relief, Exhibit M2, photos, Exhibit M3, the doctor records, whatever they are. During the hearing, I have them in the Dropbox. In Zoom, either only the meeting organizer can share the screen or you can allow anyone to share screens. I allow anyone to share screens.

If you are the lawyer and you’re getting ready to offer your exhibit number two, then in Zoom, you would go to share screen, you would select that PDF open window and your exhibit would be published. Since we’re not doing jury stuff, I’m presumed to consider relevant evidence and not consider inadmissible evidence. I’ve got to look at all the exhibits anyway to decide if they come in or not. There’s no real concern about publishing something prematurely. Either the lawyer can publish the exhibit or they can say, “Judge, can you open M2?” I’ll open it. At that point, I’ll either say it’s admitted or it’s not, and now the court reporter has it and she can do whatever she needs to do at her end. As long as the file name is titled what it is and we can find it, then she can figure out what she needs to do. Some people are also putting a little exhibit sticker stamp on their PDF. We’re not being overly formalistic about things because if you can at least get there with your exhibits, we’re going to figure out how to make it work.

Have you done a trial yet? Are you just doing hearings right now or both? 

We’ll do anything that you can get done in an hour. We did a short trial. It was two self-represented litigants and it was issues that we could get done in an hour. For the most part though, what we are doing is interim hearings, emergency hearings, TROs, things of that nature. Now that we have our Zoom system going, my court coordinator is trying to honor existing settings that we have and say, “If you can get this done in an hour, we’ll go.” 

TALP 5 | Remote Law Practice

Remote Law Practice: The interesting thing about family law is that unlike other types of law, we’re not looking at whether one particular thing happened or didn’t happen on that particular day.

 

In proceedings particularly in your type of law where credibility becomes important. Do you find that you look at different things now on Zoom than you might normally have? 

The interesting thing about family law is that unlike other types of law, we’re not looking at whether one particular thing happened or didn’t happen on that particular day. Usually, most things are an ongoing pattern of behavior. You would be surprised to see how many times many of the facts aren’t uncontested. The parties will fight about what they mean or the significance of them, but largely, “I guess I called her that.” “Yes, I went there and did that.” Everybody’s on the same page with that. We argue about who wins or what it means. I think that it is many times easier to assess credibility in those types of litigation because we’re not looking at one particular incident and whether it happened exactly that way or not. I haven’t noticed any special challenges with determining credibility. If we had a hearing that involved a lot of documentary exhibits, that would be tough to do on Zoom.

For the most part, that’s not what we’re hearing. So far, it hasn’t been negatively different from an ordinary day in court as far as working with the witnesses. What I will say has been hard, the clients, and the lawyers, everybody is having trouble doing Zoom. We had a hearing and this precious man, English was a second language and he was an older gentleman. He would pull back when his lawyer was asking him a question and then when he would go to answer the question, he was clearly holding his phone up to his ear because anytime he was talking, all we could see was his ear. He’d pull back and listened to his lawyer and then he’d answer the question again. I was like, “Bless his heart, we’re going to get through this together. It’s going to be fine.”

Some of us who have been using technology in our practices for a while are thinking, “It’s about time.” What I would ask to that point is do you see what you think may be signs of long-term change to come out of this? In your courtroom, let’s say everything goes back to normal, a week from now, months from now, do you think it will change the way that you operate your courtroom in terms of keeping the Zoom hearings as a possibility? 

I don’t think we’ll go to totally online remote hearings in general because there are a lot of values in putting people in the same room together, face-to-face. There are two main ways that I have enjoyed Zoom that I could see it being a long-term tool for us. One of them is the Simultaneous Language Interpretation feature in Zoom. It’s awesome. It is superior to the in-person interpreters that we’re doing. It also allows us to have access to languages that aren’t available locally within a drive to the courthouse. I anticipate using the Zoom features for language interpreters, and that means I can use interpreters from Houston or anywhere in whatever language I want. It’s also a better experience while you’re using it. That is one thing I definitely want to hang onto.

The second thing is oftentimes parties subpoena a professional for a trial and the professional’s testimony might be twenty minutes. They have to cancel their whole day of work, come down, sit in the courthouse hallway, wait three hours for it to be their turn. That is a deadweight loss. They had clients they weren’t able to see and have their appointments canceled, they weren’t able to bill for that time. The litigants may have had to pay them to appear as an expert witness. There’s a lot of waste associated when you have a doctor, a psychologist cancel their day and wait around at the courthouse. If that’s not going to be the main critical witness and if the testimony is going to be relatively short, there would be no reason to have them cancel everything and come and hang around at the courthouse.

We would be happy to say, “We’ll give you a 30-minute heads up, and when we get to you, get on Zoom.” The litigants would like that because they don’t have to pay a full day rate to their witness to come down to court. The witness would like it because they didn’t have to abandon all their own clients. For witnesses that are expensive or geographically far away, I think continuing to do their testimony by video would be great. Especially now if people are more comfortable with it, it will be more accepted.

You mentioned we were already set up for efiling and so that helped make this transition easier. We might be able to springboard off of this situation to improve court procedures across the board.

I agree. People realized how many paper shuffling practices were still lurking around in the courthouse. I don’t hear criminal cases. When I did electronic pay sheets, it only applied to our child welfare cases that I hear. Our judges’ meetings, they were like, “How are we going to do pay sheets?” I’m like, “Ours are already in PDF. What have you guys been doing?” It’s a good reminder and a good motivation to do away with inefficient practices. I don’t think anyone would voluntarily go back to a more inefficient practice after we’re all up to speed with the efficient way to do it. I think there are going to be a lot of positive changes that’ll come out of this.

As a lawyer, you need to make your decision-maker's job easy. Click To Tweet

At the end, we always like to ask our guests if they have a tip or a war story they’d like to share to help our audience out. 

One thing I will say is you need to make your decision-maker’s job easy. As a lawyer, it can seem deferential to tell the judge, “Whatever you think is right.” What you’re doing is you are offloading all that cognitive work from the lawyer to the judge. If you want to have a better chance of getting your relief granted, if you make it difficult to understand or hard to do, the easiest thing is for the judge to say no. The number one practice tip that I try to get out there is if you’re asking for some relief, make it easy to understand what you’re asking for and make it easy to say yes to.

For example, by proposing two options, don’t just say, “Whatever you think is right.” Say, “One thing you could do, in the first place we’re asking for this. If you’re not going to do that, second place, we’re asking for this” and have a checkbox. It sounds incredibly basic, but the very successful advocates come in with a requested ruling, a clearly spelled out plan. If you’ve handed me a clearly spelled out plan but I’m not going to do all of it, it’s still easier to scratch out parts of it and add parts of it. When you come in with nothing and I say, “What are you requesting?” You’re like, “Whatever you think is right.” It’s much easier for me to deny your relief than to craft four paragraphs and think through all the hurdles and all that. My practice tip would be to offer a plan to your decision-maker. Don’t ask your decision-maker to do all the work to come up with a plan.

That’s a great reminder to all of us to keep it simple and keep it direct. Tell the court what you want instead of making the court have to figure it out for you.

That’s right. That’s great advice, Judge. Thank you for your leadership in this area. I think it’s benefiting all the lawyers and clients of Texas. Even though we’re technically an appellate law show, we thought it would be useful to have you on to talk about what you’ve been doing because you are at the forefront, you and Judge Ferguson, of course. 

If we have one more minute, since you’re an appellate podcast, I’ll talk about the record. My court reporter has, her transcript software has an app. I have an iPad. I can see her real-time as we’re going and that way if she’s not getting something and I see a lot of “unintelligible” or she’ll put a note in there, “My connection dropped,” I can pause things so I can work together with her to make sure she’s getting a good transcript. She participates in the Zoom hearings like you and I. She’s a participant in the call taking a record and you can order a transcript from her with exhibits exactly like in a normal in-person court. For appellate law purposes, I know a lot of what the courts are doing are temporary matters that wouldn’t be appealed. They might be mandamus if anything, but probably not as relevant. If this goes on much longer, we would have to do a final trial this way. I wanted to emphasize to the appellate lawyers, you’ll still get your transcripts.

It’s also good to know because I’m sure both Todd and I are going to be on a Zoom hearing at some point soon.

It’s easier for you guys now to sit along and observe things because you don’t have to get dressed up and drive to a courthouse.

Everybody’s going to be asking the record questions. I can already hear, “What am I going to do with my exhibits? I can’t hand them to the court reporter.” That’s what email is for.

TALP 5 | Remote Law Practice

Remote Law Practice: We can’t shift completely to remote online hearings because there is still a lot of value in putting people in the same room together, face-to-face.

 

Premark and agree in advance to your exhibits, and handle your objections by agreement if you can. It seems like that’ll make things more efficient. I never understood trial lawyers who wouldn’t walk into court with an agreed set of exhibits and then the list of only the things that are disputed, because it wastes the court’s time. 

The best lawyers do it that way, and that helps build your credibility too when you walk in. You would be shocked at what people show up for trials with. I’ll ask a lawyer and the lawyer will object, “We asked for that in discovery and it wasn’t produced.” I’m like, “Do you have a copy of your discovery requests?” “No, it’s in my file.” I’m like, “Bring your file to your trial. How do we know if you requested it in discovery, and how are we going to know if they responded?”

“But, because I’m telling you Judge.”

I’m like, “Overruled. I don’t know what you want.” Make it easy for me to grant you relief.

Judge Miskel, thank you for joining us. We appreciate you being here

 Important Links:

Love the show? Subscribe, rate, review, and share!

Join the Texas Appellate Law Podcast Community today: