Remote Hearings create Challenges to Due Process
COVID-19 has created enormous challenges for gatherings of people, including court proceedings. Courts across the country have been adapting to accommodate remote hearings but these changes are fraught with potential issues resulting in lack of adequate due process. Zoom has created a Zoom for Government in the last few months to accommodate the security needs of judicial proceedings; however, there are still numerous challenges in accommodating remote hearings. For instance, some litigants may not have access to the technology to accommodate participation in a remote hearing or there may be language barriers that are harder to accommodate remotely. Another hurdle that courts have had to adapt to accommodate is the introduction of evidence to the record. Securely sending documents through the mail or digitally requires many more steps and procedures than the typical introduction of secure documents manually. Remote swearing-in of witnesses is another issue courts have grappled with performing remotely. Additionally, creating a secure environment for cases presents a challenge. With everyone working from home, someone’s family member existing in the background of a hearing could result in unauthorized “participants” to the trial.
Courts have learned to state that unauthorized reproductions of materials cannot be distributed, thus ensuring that all cell phones, digital recordings, etc. of all participants are not occurring but guaranteeing this request remotely presents an entirely different challenge. When proceedings are available to the public, the courts have had to ensure that they meet this requirement, using streaming platforms such as YouTube to present the proceedings, presenting yet another avenue for inadequate procedural process if there is any technical glitch. In instances such as this, a technical glitch can result in the inadequate due process occurring and the proceedings being nullified. Conversely, when confidentiality is required, the procedure set can become even more cumbersome for the courts to accommodate remotely: the need to guarantee confidentiality remotely by excluding third party access, hacking, and unauthorized recordings present logistic challenges as courts adapt to remote operations. Imagine needing a break-out room to discuss confidential issues between an attorney and client but not being sure that the digital space given to do this is secure and private, not only from unauthorized “participants” but that the break-out room is guaranteed to be private from the opposing side and judge.
Productivity and Professionalism
In addition to ensuring that participants have access to remote hearing technology, adequate bandwidth for continuous video recording is yet another challenge that must be overcome for a hearing. Additionally, something as simple as participants ensuring that they have adequate charge for their devices for the entire proceeding has been a hurdle trials have had to overcome, adjourn for, and cause untold disruptions. It has been challenging for even attorneys to remember that these remote hearings are considered by the judicial system as official proceedings. There are stories of not only litigants but attorneys as well showing up for hearings not wearing pants or shirts, taking their video recordings into the restrooms, or having children or dogs constantly interrupting the proceedings. While these examples are extreme disruptions, smaller ones also need to be considered, such as your camera angle, what’s in your background, how close you are to your microphone, and whether you can be heard. Additionally, participants may need their names shown on the screen to document participation. In an instance like this, participants need to ensure that their computer or log-in name is theirs and not another family member or even some inappropriate username.
The lag of audio and video in remote proceedings can truly create challenges for the timing of communications, with even accidental interruptions of another participant causing disruptions, making someone seem contentious, as well as causing issues for the court reporter. Truly acting as if participants are IN the courtroom is the first and most crucial aspect to consider for a successful remote hearing. Making sure that participants have practiced is also very important: testing audio and video, testing internet bandwidth and capability for both attorneys and litigants, as well as checking your monitor and background are crucial to setting up for success in remote judgments. Ensuring that participants are on time or not fumbled by technical difficulties on a full docket could cause a harsh judgment for a participant being absent.
As our lives continue to be affected and changed by COVID-19, we’re not sure which changes are here to stay and which aspects will “return to normal.” As these changes in court proceedings become more and more commonplace, the likelihood that remote hearings could become the norm, especially in civil matters, increases. Thus, adapting and adopting best practices for these changes is essential for short-term success and likely in ensuring long-term success in legal proceeding participation.
I truly value learning the ins and outs of legal proceeding changes in our new normal. While at Tag Process our focus on compliance offers us the ability to avoid court proceedings in our day to day business, awareness of the changes and how to best navigate due process is always part of learning and ensuring best practices moving into the future.
This information is not legal advice and may not be used as legal advice. Information discussed or contained is not an explanation of the law and is presented for educational purposes only.