By: Donald L Swanson
An early-in-the-pandemic report on judicial processes [fn. 1] shows how the pandemic produces a revolution in the way courts do business—a revolution creating improvements in court processes that are here to stay. What follows is a summary of that report.
Before the pandemic began, US courts lag behind other industries in the use of technology. And courts push back against the use of video conferencing for hearings, trials, mediations and other court processes.
Some courts had been pioneering the use of technology to make court processes more accessible, efficient and user friendly. And they received excellent responses from the public. But those courts were the exception, and actual changes had been minimal and incremental—and occurred at a snail’s pace.
But then comes the pandemic. Beginning in mid-March 2020, US courts suddenly—and overwhelmingly—embrace technology and its alternatives for meeting the needs of the moment. They do so almost overnight—because they have no other choice.
As the pandemic limits in-person gatherings across the globe, US courts have to shift their operations to virtual processes. Within a matter of weeks, courts adopt virtual technologies to conduct hearings, with parties, judges and other judicial officials participating remotely—often from their homes.
The pandemic forces courts to be innovative and creative in real time. The result: there is now a refreshing openness to virtual hearings, virtual mediations, and other digital court processes.
Judicial officers have observed:
- “Ideas that just a month ago were considered radical or out of the question are actually being embraced now and are probably going to become the norm”;
- “I don’t think that things will ever return to the way they were, and I think that is a good thing”; and
- “This is not the disruption we wanted, but it was the disruption we needed.”
One lesson-learned is this: virtual court processes are not only adequate, they are in some cases superior to the old way of doing things. For example, participation by defendants in eviction proceedings jumped from 10% to 80% in an Arizona court, when hearings went online.
Virtual hearings also benefit the judicial process:
- Attorneys can handle more hearings in a day, when they don’t have to travel between courthouses and courtrooms;
- Judges can handle more cases in a day, resulting in faster case dispositions;
- The ability to “mute” participants helps keep people from talking over each other; and
- Conferencing platforms provide free or low-cost recordings and automatic transcriptions.
A groundswell of judges, court administrators and parties express enthusiasm for such uses of technology.
Additionally, unpredicted benefits arise. One judge observed, for example, that virtual hearings seem to reduce conflict among and improve respect between the parties.
Concern and Responses
Some judges express concern that virtual processes somehow diminish the significance of judges/justices and the courts. However, one judge suggests the opposite:
- “It is not that court is not important, it’s that court is REALLY important, and a limited resource. There is only so much judge time…”;
- “None of this is comfortable for us,” but “there is no going back”; and
- The pandemic became a “tipping point . . . that magic moment when an idea, trend, or social behavior crosses a threshold, tips, and spreads like wildfire.”
The same judge adds, in praising the new way:
- “Courts are the original ‘Alternative’ form of dispute resolution”;
- “Before courts, it was a sword. Whoever was better with the sword won”;
- The pre-pandemic failures to fully embrace technologies and business kept US courts in the proverbial Middle Ages;
- Now, of necessity, courts are embracing changes that bring court processes in line with available technologies and public expectations;
- People do everything online: pay bills, bank, consult with doctors, buy real estate, date, even get married online—the delivery of justice isn’t so different; and
- Where courts lead, lawyers will follow—courts are the driver and should not waste the moment. Now is when their leadership counts.
The pandemic upset everything for courts and court systems throughout these United States.
The old way of doing things no longer worked—and huge changes occurred over night . . . literally.
Those changes create efficiencies and effectiveness, as never-before imagined. Those changes are here to stay—and that’s a good thing!
Footnote 1. “Judicial Perspectives on ODR and Other Virtual Court Processes” is a product of the Joint Technology Committee established by the Conference of State Court Administrators, The National Association for Court Management and the National Center for State Courts. It is compiled and written by Lise Embley, technical writer, National Center for State Courts, and published in the JTC Quick Response Bulletin on May 18, 2020.
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