Here is a scenario that might be playing out in various forms around the country: A judge looks at her increasingly crowded docket during the coronavirus pandemic and thinks, “Well, I’m doing professional meetings on Zoom every day. Why couldn’t I move some of these trials by putting all or part of them online?” So the judge scans the list, looking for cases where both parties might be motivated enough to give it a try. But what if one side doesn’t agree? What if, as is often the case, one side actually benefits from the state of limbo in having no clear trial date on the horizon? Let’s say that in that situation, the judge goes ahead anyway, sets a date, and requires even the reluctant parties to logon and proceed to trial. Has our judge just created reversible error? That is bound to be tested at some point, but at present, there are good reasons to think that the answer is “No.”
In a recent article available on the Social Science Research Network (SSRN), two former judicial clerks and current Research Fellows at New York University’s Civil Jury Project (Shammas & Pressman, 2020), make the argument that, while it may be reversible error to force a criminal defendant into a virtual trial (because the Federal Rules of Criminal Procedure appear to require a defendant’s physical presence to satisfy the Confrontation Clause), it is probably not error to require video-conferenced communication in a civil trial. In this post, I will take a look at some of their reasons why, and consider the ways that inform the situation that courts and litigants are currently facing.
The Situation: Still No Clear Light at the End of the Tunnel.
As many commentators have recently noted, even as more and more of us are feeling done with the virus and its restrictions, the virus is not done with us. Infection rates are still alarmingly high in the United States, and currently average more than 40,000 new cases and 850 deaths per day. While the situation might (or might not) change dramatically with the emergence of a vaccine, many experts are saying that we should prepare for the long haul, stressing the unwelcome likelihood that we could be experiencing many of the same limitations on in-person contact well into 2021.
That sobering reality raises the question, how long can our court systems afford to remain at or near shut-down, or at a significantly diminished capacity? Many courts are pressing ahead with temperature checks, distancing, hand sanitizers, and masks, but are also generally restricting themselves to a few cases held in the largest courtrooms. I haven’t seen a strong argument that courts with these limits could address the volume of cases now stacking up on the dockets.
So that leaves courts with the tools that businesses and schools have been using relatively effectively for the last half-year: online meetings. There are limitations with all systems, and still a lot of work to be done in learning the best practices for adapting online tools to the unique and essential requirements of the courtroom. But it would be truly odd if the trial court was one of the very few professional spaces where distanced communication is not a big part of the solution during the pandemic.
The Solution: Reasons Why a Civil Zoom Trial is Not Reversible Error
The authors of the SSRN paper looked at the case law in contexts where the permissibility of videoconferencing has come up. Here are some of the reasons they believe that moving the civil trial to an online space is not reversible error, even when parties don’t voluntarily agree with an online trial:
- Even as there is no specific authority explicitly permitting online civil trials, there is also nothing in the Federal Constitution or state Constitutions prohibiting or limiting them.
- Courts would apply a balancing test in assessing the validity of any procedural limits caused by online communication, and the current public health crisis would weigh heavily in favor of allowing that accommodation.
- The Confrontation Clause, that has at times been interpreted as requiring a criminal defendant’s physical presence, does not apply in a civil trial context.
- Online trials can meet the “public trial” requirement more easily than in-person trials that would use the entire gallery for social distancing, and thus not permit public attendance.
- Without online trials, courts will face a tremendous backlog, and potentially a breakdown in the system.
- Online platforms can facilitate credibility determination by giving jurors a full view of an unmasked witness.
Reasonable people can differ on the merits of Zoom and other web-conferencing tools. The technology can be inconsistent, the resulting communication is not as high-definition as reality, and it can be frightening to think about what is off camera. But there are also problems with the limits placed on in-person trials. There are still many factors to be worked out. Based on the author’s analysis, though, concern over error should not be a strong reason for avoiding an online civil trial.
Shammas, M., & Pressman, M. (2020). Advocacy through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference. Shammas, Michael and Pressman, Michael, Advocacy Through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference (July 30, 2020). Available at SSRN: https://ssrn.com/abstract=3664014 or http://dx.doi.org/10.2139/ssrn.3664014.
Image credit: 123rf.com, edited by author