Michigan’s courts have adopted a digital-forward approach with an order to continue the use of videoconferencing and other technology that helped the state hear cases during pandemic lockdowns.
The move highlights the crossroads at which the legal industry finds itself, with many practitioners asking: How many of the digital processes used out of necessity over the past two years should become standard, especially in terms of virtual proceedings?
A recent survey of judges and court professionals at State, County, and Municipal Courts levels found wide support for retaining technology in the courtroom. Almost nine in 10 said they were in favor of hybrid in-person and virtual formats for court hearings. Just 13% indicated a planned return to traditional in-person hearings only.
The findings, reported in “The Impact of the COVID-19 Pandemic on the State and Local Court System” by the Thomson Reuters Institute, revealed that opinions varied according the type of legal procedure. The survey of 238 individuals found 57% of courts are planning to conduct civil hearings virtually, while the figures were 45% for criminal cases and 37% for family court proceedings.
While the transition to virtual proceedings and digital processes had some challenges, more than three-quarters of professionals saw a positive impact; 42% of respondents said they felt access to justice had increased with virtual proceedings and 35% said it had stayed the same. The report found that 81% felt greater access was due to convenience, better attendance, and participation by parties. For the 23% of professionals who felt access to justice decreased, the top reason was due to a lack of internet access (52%).
While video conferencing proceedings and trials gained the most attention during the pandemic, courts also quickly switched other previously in-person processes to digital technology. According to Pew, 10 new states joined the 37 that passed laws before the pandemic to allow people without lawyers to file court documents electronically. By the fall of 2020, 42 states and Washington D.C. allowed remote online notarization to make it possible for court cases and hearings to proceed while they were closed due to COVID-19 restrictions.
Pew also reported that participation in many cases increased with the availability of videoconferencing technology. Previously, more than 70% of defendants in debt collection cases failed to appear in court between 2010 and 2019. Michigan Chief Justice Bridget Mary McCormack shared on Butler Snow’s “Texas Appellate Law Podcast” that the figure is now 30%.
States are beginning to address this issue for their courts. A new proposed administrative order in Michigan gives a view into the state’s current vision of using digital processes in the court system. By issuing Zoom licenses to every judge in the state in May 2019, Michigan was a step ahead of many states when the pandemic closed courthouses. During that period, Michigan reported more than 5 million hours of virtual proceedings.
The order uses the phrasing “to the greatest extent possible” to illustrate that Michigan wants its judicial system to use digital as the standard and then other processes when technology is not feasible. One section of the order specifically calls out the use of electronic means, such as e-filing, email or fax, for all processes when possible, except for case initiation.
However, the section of the order gaining the most attention is that which requires trial courts to use remote participation technology, such as videoconferencing or telephone conferencing, to the greatest extent possible. The order includes several specific directions to make sure the execution is fair for all parties, including verifying if participants can proceed remotely, allowing proceedings with some in-person and some remote participants, ensuring that any such proceedings are consistent with a party’s constitutional rights, and allowing confidential communication between a party and the party’s counsel. Additionally, provisions are included to make sure that hearings comply with the State Court Administrative Office’s guidelines and to waive fees for remote participation.
As states begin deciding the future of legal proceedings in their jurisdictions, law firms should start to prepare proactively for a future that requires hybrid proceedings. Large law firms that practice in multiple states face the biggest potential challenge of having significantly different processes depending on the location of the case.
Start by reviewing how the firm operated over the past two years with virtual proceedings and identify areas for improvement. Look for areas of training for employees and education for clients. Other opportunities may include automation, such as automatic document forwarding and emails. Design ideal in-person processes for managing hybrid proceedings across multiple jurisdictions. Keep in mind that each jurisdiction may have different rules and processes, so allow flexibility for managing the differing requirements.
Many legal professionals are laser-focusing on the virtual hearings aspect of the proposed changes. Instead, firms should be looking at the entire process and how technology can improve the experience for all involved. By having certain software in place such as a contract management solution and online notarization platform, your firm can best support proceedings with participants located in different physical locations. Without the supporting digital processes, virtual hearings are likely to encounter more challenges in preparation and execution.
With all systems in the cloud, clients and employees can have the anywhere access needed to make digital processes and virtual proceedings as seamless as possible.
Previously, cybersecurity focused on securing a physical location. With virtual proceedings likely to continue in some jurisdictions for certain proceedings, law firms must shift their cybersecurity strategy to focusing on reducing vulnerabilities with employees and clients operating from outside the building. With zero trust, your cybersecurity starts from a place of least privileged access where employees and clients are granted only the lowest level of access needed for business purposes. Additionally, each time a device, app or user requests access, cybersecurity technology starts with the assumption that the access is unauthorized and requires proof of authorization.
The future of the legal system regarding virtual hearings will likely continue to play out for several years. By proactively preparing for a digital future in terms of both processes and hearings, law firms can keep their focus as much as possible on their top priority: representing their clients.