Yes, the lawyer who showed up to court as a cat because of a filter will likely be one of the pandemic stories that stand the test of time. But over the past three years, the legal system turned to videoconferencing for everything from hearings to full-blown trials – some positive, others stressful, and more than a few funny. We learned many things from remote proceedings, especially to do a test run and always check your filters before heading to court.
With 89% of judges and court staff responding that they expect to continue virtual legal proceedings, videoconference meetings are likely to remain a part of our future. By learning from the highs and lows, law firms can create the technology and processes to help best serve their clients.
Here are three stories to help us chart our path forward with technology for legal processes and proceedings.
Without the formality of the courtroom, some participants in legal hearings let dress codes fall by the wayside. In February 2021, a California federal judge made a joke about an attorney not wearing a tie during a virtual hearing on Finisar’s $6.8 million securities settlement. At the start of the hearing, the attorney had explained that he wasn’t at a resort but was using a background of Mount Vesuvius. The judge responded, “They don’t wear ties at Mount Vesuvius?”
Other people showed up in virtual court with much less on than a shirt without a tie. District Judge Stephanie Pearce Burke in Kentucky had a defendant show up to a virtual court proceeding with her video on wearing hair curlers – and nothing else. In another hearing, a participant remembered his shirt but forgot his pants.
A court hearing is a court hearing, regardless of whether it’s in a physical courtroom or held virtually. Everyone should dress the same as they would for an actual in-person hearing. While some judges may have a more lax attitude in virtual proceedings , many don’t, which can have repercussions for participants. Lawyers should talk with their clients who participate in virtual hearings and give specific guidance on the dress code. Under all circumstances, everyone on the video proceeding should wear pants at all times.
The mother was suddenly not on the video call. Because she was in the car, she lost cell service and couldn’t find a signal. Unfortunately, a key witness for the Massachusetts Department of Children and Families was testifying during her trial to keep her parental rights. The judge called her phone, but no answer. They waited, but she didn’t show up. The judge decided to go on with the trial without the mother, and the remaining two witnesses testified.
When the court reconvened the judge gave the mother the opportunity to cross-examine the witness. But since she had not heard the testimony and was not given transcripts, she didn’t know where to start. This wasn’t the only technical issue during the trial. The judge requested one witness to yell her testimony because of the connection, and another witness joined by phone due to a frozen connection.
When the mother lost her parental rights, her attorneys appealed, and the Massachusetts Supreme Judicial Court granted a new trial, ruling that her due process rights were violated. The court said that “[i]t was unreasonable to expect her to be in a position to conduct meaningful cross-examination.” The opinion offered alternatives that the court could have taken, such as suspending the trial to allow the mother to review the three witnesses’ testimony before the cross-examination.
Technology glitches happen, usually at the worst time possible. Everyone needs a backup plan, such as a dial-in phone number for video calls or a process to deal with lack of cell service. Most importantly, participating in a virtual hearing from the car should only be done in a true emergency. Lawyers should advise clients to take virtual hearings from a location with strong wireless and cell connections. If possible, the lawyer and client should check the connection prior to the virtual hearing.
'Zoom bombing' was one of the many new words that the pandemic brought us. It caused chaos in multiple courtrooms. Zoom bombing is when an unauthorized participant joins a Zoom meeting or court hearing. While sometimes they want to steal data, other times the goal is disruption.
In late summer 2020, cyber criminals broke into 10 virtual courtrooms in Lake County, Illinois at the same time. They pretended to be a court reporter to gain access to join and were admitted. And to make things really confusing, the cyber criminals began impersonating judges, attorneys, and defendants. The proceedings halted, and everyone moved into a virtual waiting room to figure out who was the impostor.
Legal professionals and courts should proactively make sure that proceedings and meetings are secure. Remind all participants to log in over a secure network or use a virtual private network. Don't use public wireless. Require passwords for all meetings to limit unauthorized access. In addition, make sure that only authorized attendees are at the proceeding from the start. Remove anyone who shows up unannounced.
Most experts agree that virtual legal proceedings will continue to have at least some role in our judicial system. By proactively working with all participants to make sure that they understand the expectations and the technology, law firms can keep themselves out of funny roundup articles about virtual mishaps. Most importantly, they can get the best possible outcome for their client, whether online or in person.