Videoconferencing allowed many businesses to maintain operations after the COVID pandemic shut offices down in March 2020. Courthouses quickly followed suit, and in a matter of weeks, judges began conducting court proceedings on videoconferencing platforms such as Zoom and WebEx. This transition was mostly born out of necessity and required courts to break through their traditional resistance to video cameras and recording devices in the courtroom, as well as their resistance to remote proceedings in general.
Now, roughly two and a half years since the start of the pandemic, remote court proceedings seem to have gained a permanent foothold in some court jurisdictions. In others, they remain a rarely used, second-best alternative. But there’s no doubt that they are here to stay in some form or another.
Let’s take a look at three courts that are leading the way in remote court proceedings, and the lessons we can learn from these forward-thinking courts.
Best Practices from Leading Courts
Courts in Washington State are some of the most extensive users of remote proceedings in the country. In anticipation of the October 2022 expiration of COVID emergency provisions, the Washington Supreme Court issued a rule that would make remote depositions the default for all civil matters, flipping the presumption that a deposition should be held in person. In addition, the state has developed a single virtual proceedings website that lists remote proceedings for the Supreme Court, Court of Appeals, and county-level superior, district, and municipal courts. King County (Seattle) is also a national leader in the use of remote processes in jury selection.
- Similar to Washington, Florida’s Supreme Court established rules that went into effect in October 2022 to give technology-driven virtual hearings and remote depositions a permanent role in the state’s judicial processes. A key part of the rules was to define various audio-video communication technologies that can be incorporated into civil, criminal, appellate, probate, traffic and small claims cases. The result favors remote hearings and gives trial judges broad discretion to order the use of remote technology in all cases, even over the objection of counsel.
- Earlier this year, Minnesota’s Supreme Court enacted sweeping rules favoring remote proceedings. The state’s new oneCourtMN Hearings Initiative Policy assigns every case type a presumptive format—either “in person” or “remote”—that cannot be changed unless exceptional circumstances exist. The new policy covers divorce and child custody proceedings, domestic abuse, evictions, probate, juvenile delinquency, guardianship, and all types of civil litigation. Only major civil cases that include bench and jury trials, as well as contempt hearings, will be held in person.
The above examples are not indicative of every state and there are real challenges to implementing remote proceedings, including access to technology and organizational resistance. Some courts are even moving away from remote proceedings, but this shouldn’t detract from those courts that are using them with great success.
Lessons Learned from Leading Courts
Given the experiences of the above courts and their success with remote proceedings, what are the main themes that can serve as lessons learned for other courts?
- Top-Down Approaches Are Ideal. Having a state’s highest court establish rules and procedures for the use of remote proceedings contributes to a higher rate of success. If the decision were left up to individual courts and judges, the use of remote proceedings would be much lower and less uniform. While mandates may be seen as an infringement on the operational preferences of lower courts, they establish a standard practice and leverage the substantial technology investments implemented during the pandemic.
- Technology Investments Are Crucial. If the technology isn’t reliable, a court isn’t going to be successful using remote proceedings. Florida’s approach illustrates the importance of technologies, and Washington shows the power of well-designed and easily accessible virtual access. States that aren’t experiencing success with remote proceedings should consider assessing and increasing their technology investments.
- Focus on Flexibility, Not Replaceability. The goal is not to replace all in-person proceedings with remote proceedings. Even Washington, Florida, and Minnesota have resisted using remote proceedings as the default for criminal proceedings. Instead, the focus should be on the flexibility to conduct remote or virtual proceedings when it is in the best interest of all parties. This flexibility benefits most participants in civil, probate, traffic, and small claims cases.
Just as there are no across-the-board standards for general court operations, there are no across-the-board standards for remote proceedings either. While court-specific standards should be developed over time, each individual court has the latitude to experiment and to see what works best for them. This period of trial and error will continue to be enhanced as more and more courts embrace remote proceedings, and as the library of best practices and lessons learned continues to grow.
It’s exciting to envision what the court of the future might look like as the brightest and best ideas are tested and implemented and as newer technologies continue to emerge. Now is the time to learn from courts that are blazing the trail and to craft the policies that work best for your court. Remote proceedings are here to stay—how will you embrace them?