No Longer Can the Excuse Be, "We Have Never Done It that Way Before, And We Aren't Starting Now."

by:  GUEST BLOGGER SCOTT KEY

CoVid-19 and the Opportunity to Move Courts Forward
 
The CoVid 19 crisis, for all of the tragedy and devastation it has brought, has given the court system the push it needed to handle its business more efficiently. If the judges handle things well they will not go back fully to the ways of operating that existed before the virus. In what follows, I will discuss things that are working to make litigation less costly, the courts more available and open to the public, and more efficient through the use of video conferencing. But first a brief history discussion.
 
The Antiquated Circuit System 
The court system as we know it was perfectly innovative for its time— the eighteen and nineteenth century. Before the automobile and even in the automobile era, the local courthouse served as a staging area for court. But the court was a traveling show. One need only read a biography of Lincoln to learn how much sense it made for the lawyers, judges, clerks, and bailiffs to travel throughout a region to hold court on tour. Such a system ensured that transportation costs did pose an insurmountable barrier to meaningful access to the courts. In an era of transportation challenges, the circuit system was the most efficient available model. 
 
Even in an era when an automobile is inexpensive enough to be available to every household, the circuit system no doubt had its utility. However, in an era when video conferencing technology is available essentially for free to everyone with a phone, the circuit system for court is strikingly outdated. If we were building a court system from the ground up today, it likely would not require hundreds of people to be screened through a metal detector, the transportation of inmates to a holding area, and for hundreds of people to be packed into a crowded courtroom to do things like say, "not guilty has been entered,” or “we are asking that this matter be continued until the next trial calendar.”
 
And yet the way we do court is still based on a system that was in place for the level of technology available when Lincoln was practicing law. We no longer need our judges to ride a circuit.
 
Matters Easily Handled by Video Conference
When virtually the entire nation was put on quarantine, nearly any parent with school-aged children learned practically overnight to use applications such as Zoom. And so did the Courts. In April of 2020, the Georgia Supreme Court made history when it held two days of oral argument entirely by Zoom. The process went seamlessly. And a case could be made that the level of argument was made better for it. Oral argument has been described as an enlightened conversation among scholarly colleagues. Via a Zoom, with the lawyers and justices joining from their offices, the argument seemed somehow more intimate and less theatrical than in a courtroom with the performers on stage. The highest court in Georgia, in a matter of weeks, figured out how to conduct its important business by Zoom. 
 
What we have learned is that non-evidentiary hearings are perfect for video conferencing. Video conferencing is also perfectly suited for routine housekeeping matters such as scheduling, announcements, and the enforcement of deadlines for things such as the entry of a plea. For civil matters, at least, even evidentiary matters could be handled over video. 
 
Surely They Won’t Make us Go Back
Before the emergency order was put in place, court was set up in a way that seemed to maximize inconvenience. At the average arraignment and pretrial calendar, chaos reigns. Lawyers and parties sit around for hours and await their moment (sometimes that moment is less than a minute), to announce something to a judge or for a motion that takes maybe fifteen minutes to handle. And for all of that, an entire docket’s worth of people are brought into the room to wait their turn. The real fun begins when a lawyer has a conflict of several such matters in various counties to dispose of. The lawyer performs a mini-circuit, sometimes driving hundreds of miles in a day. And if the lawyer cannot make it to all scheduled appearances, then the client waits all day. The missed day of work, the childcare expense, the stress of being in court, amounts to no forward progress in the case. And for the client who is paying the lawyer by the hour, the meter is running for at least part of the lawyer’s drive to the courthouse. 
 
A Matter of Incentives
It does not escape my notice that there is a perverse method to the madness. Much of the inconvenience is by design. Judges often pack in all the mandatory calendars in an effort to force matters to resolve by attrition. Miss enough work, pay enough for childcare, go through enough stress, and parties will be willing to do anything, including plead guilty to a crime, to avoid another court appearance. Such a system brings disproportionate weight upon the working poor, particularly the hourly wage earner. 
 
However, if the goal behind all the coercion is to move the docket in an expeditious manner, then an efficient case management system that allows the attorneys and parties to appear without the need for travel and the expense of the full courthouse security apparatus, would achieve that goal better. And courts can still enter scheduling orders, mandating things such as deadlines for motions and for acceptance of a negotiated plea — using the power of the court to move cases forward toward resolution. 
 
Other Benefits
A system that uses video technology can produce other benefits as well, such as a more public court system. There has been a trend in moving courts to the inside of jails and prisons. Many criminal and habeas proceedings take place jailhouse courtrooms. Such places are either intimidating for the public to enter or have limited seating. And even the biggest courtroom can only hold so many people. And while trials are certainly broadcast live, in an era of video technology, the public could watch virtually any courtroom proceeding— not just the most salacious murder trials. 
 
Some Modest Proposals
Arraignments, calendar calls, and non-evidentiary motions should, by default, be set up via video conferencing. Evidentiary proceedings in civil and criminal motions should be by video conferencing if all parties agree to handle matters that way. Jury trials remain in the category of proceedings that should be handled in person— particularly given current caselaw around the Confrontation Clause.  Oral argument in appellate cases should be done by video conferencing upon order of the Court or upon agreement by the parties.
 
The recent Co-Vid Crisis has taken away the biggest impediment to a widespread change in how we do court— the objection that we’ve never done it that way before. When the crisis is finally in the rearview mirror, we should take away a more sensible and efficient manner of handling court. It is worth mentioning that such a system would greatly improve the quality of life for attorneys and make the delivery of legal services more affordable to the public. It would be nice to handle court from the office, from home, or from practically anywhere in the world, with less time driving and more time available to devote to the actual handling of cases.