By: Lawrence P. Fletcher-Hill
Not since Paul Lynde last presided from the center cubicle of the original Hollywood Squares have so many people stared so intently at screens with people arranged in little boxes.2 A little bit like litigation, the game show turned on credibility. The two rival contestants had to assess the credibility of the boxed celebrities’ answers to questions posed to them. Trial lawyers may sometimes see the opposing party’s experts as two-bit celebrities engaged in calculated bluffing, but the parallels break down pretty quickly. Let’s put the games aside and look at some recent experience with civil proceedings conducted by remote electronic means. I refer mostly to how we have been doing things in civil cases in the Circuit Court for Baltimore City, but all Maryland courts have been adapting and innovating with the available technology.
The expanded authority for remote electronic proceedings in civil cases in the circuits courts was not an emergency response to the current pandemic. The Court of Appeals added Title 2, Chapter 800 of the Maryland Rules in April 2018, almost two years before most of us knew what a novel coronavirus is. The Rules Committee sought “to take advantage of the technology that allows for reliable interactive communication to provide for more efficient access to the courts, without sacrificing the required fairness in judicial proceedings.”3 It saw civil proceedings in the circuit courts as a good place to start, but the Committee envisioned later expansion “to the District Court and, to the extent Constitutionally permissible, to criminal and juvenile proceedings.”4
Two broad aspects of these rules are notable. First, they endorse the concept of conducting an entire proceeding virtually, not just the idea of plugging one remote participant into a conventional courtroom hearing by an electronic connection.5 Second, although consent is nice, conducting a proceeding remotely is not only an option when all parties agree it is feasible and desirable. These rules allow a circuit court to require on its own initiative that a particular proceeding or category of proceedings be conducted remotely. There are two important safeguards. A party must always be given notice that the proceeding will be conducted remotely and an opportunity to object.6 And judges must constantly assess the fairness of remote proceedings: “If, at any time during a [remote] proceeding or conference . . ., the court determines that the personal appearance of the participant is necessary in order to avoid substantial prejudice to a party or unfairness of the proceeding, the court shall continue the matter and require a personal appearance.”7
As with so many other things, the pandemic changed everything. Before the emergency closure of the courts on March 13, 2020, the expanded authority for remote proceedings was being used sparingly. With that closure, we went from almost 100% in-person proceedings to zero and almost immediately began building back with technological and procedural adaptations.8 Remote hearing technology instantly became the primary tool for recovery. In Baltimore City, our crash course in meeting technology started mostly with Skype for Business. We have now transitioned almost entirely to Zoom for Government.9 Eight months later, our court was almost fully back to pace with all types of civil proceedings, even accomplishing four civil jury trials. In November, Chief Judge Barbera took a prudent step back because of the increasing severity of the pandemic, but we now have a good sense of the power of this technology once it is possible to resume the path toward full operations.
Before looking at the experience with these proceedings, an important word about access to technology. The courts must ensure access for litigants and witnesses who do not have attorneys and who may not have access to more advanced technology. The circuit court sees those issues in every category of cases, but especially in Family Division cases. The District Court faces this problem even more broadly. Among our court’s adaptations to ensure access, we have made sure that any Skype or Zoom proceeding can also be joined by a dial-in connection using an ordinary telephone. Email communication with counsel has created its own challenges, but we have supplemented that mode of communication with paper notices to self-represented parties to ensure they know when a proceeding will be conducted remotely and have the necessary links and dial-in information to be able to participate.10
So what are we judges seeing with this explosion of remote proceedings? Dogs and cats. (Dogs generally are more persuasive to this jurist.) The occasional child. Some interesting clothing and backgrounds. And the “roving participant.” This is the person who signs on from a phone, then proceeds to stand up, sit down, go outside, come inside, go outside again, get in the car, drive a little bit. Thankfully, this usually happens with non-lawyer participants, though I have heard of a lawyer joining a hearing while walking down the street. I blame our multitasking culture. Just because technology now makes it possible for a person to get an uncontested divorce while picking up the dry cleaning doesn’t make it a good idea.11
These are still court proceedings that are serious and warrant a measure of decorum. Just ask yourself, would I do this if I were sitting or standing in a courtroom? Even if you are appearing at a hearing from home, that informal setting is now an extension of the courtroom. Your dining room table is the counsel table. You still need to dress and present yourself in the same professional way. Suppose you are at your office desk with the case file in a cabinet nearby. “Hang on, judge, let me grab that pleading from the file.” You wouldn’t think of answering a question that way in the courtroom, and the convenience of a remote proceeding should not be a license for that kind of lack of preparation. The same extends to non-lawyer participants, though they may have a better excuse for not knowing better. Just as you would prepare a client or witness for what to expect at the courthouse and how to dress and behave, you should now add to the preparation some basic Zoom etiquette.
There are some things that are peculiar to virtual proceedings like muting and unmuting audio and starting and stopping video. No one has these controls in the physical courtroom; indeed in the physical realm we hardly ever think of audio and video separately. Before we even get to the start of the hearing, there is the fundamental Rule 0 of preparation: Test and be proficient with your equipment. Fumbling to get sound or video connected or to figure out how to mute or unmute is very aggravating. Rules 1 and 2 of Zoom etiquette: Keep yourself on mute except when speaking, and avoid connecting from places that have unnecessary background noise.12 I don’t know if there is a Rule 3 for when to turn your video on or off. Switching video on and off with any frequency is distracting, and counsel appearing for the hearing should remain on video throughout unless there is a good reason to go off camera. A party or witness, on the other hand, could well turn off video either for comfort or to avoid creating a distraction. My nomination for Rule 4: Beware of chat. Using chat to communicate logistics from a breakout room is legitimate, but trying to communicate by chat as a supplement to the verbal portion of the proceeding is not. Trying to engage in private chat during a proceeding is just plain dangerous.13
The separate emphasis on video is a new feature of virtual proceedings. The preference for video is explicit in Rule 2-803 for evidentiary proceedings that involve assessment of demeanor, but I find video to be extremely desirable in all types of virtual proceedings. It is certainly possible to have an effective hearing with one or even all participants connected only by audio, but the visual element dramatically enhances the ability to communicate. Seeing the person who is speaking provides a dimension that is lacking with an audio-only connection. Even when the audio connection is perfectly clear, the absence of visual contact requires extra mental effort. It’s a little like sloppy writing. The idea may still get through, but disorganization or typos can detract from the message. My advice is to work hard to make sure that you and any important participant has the ability to join the proceeding with video.14
Ironically, just as video adds an element of wholeness that enhances communication, it also can add distraction. Eye contact is important. I am guilty on this one. When I am at my desk, I have a larger monitor and a laptop with a smaller monitor to one side. The camera is on the laptop, but the large monitor attracts my attention, which shifts my focus away from the camera. In a piece on virtual voir dire, one trial lawyer advised to arrange your equipment to ensure an ability to look directly into the camera even while observing the prospective juror on the screen. The same trial lawyer emphasizes the need for careful attention to camera angle and lighting and other “production values.”
One area where there is now an even higher premium on advance preparation is exhibits in any type of evidentiary proceeding. In olden times, a piece of paper might be handed in the courtroom from counsel to the clerk to be marked to opposing counsel to be reviewed to the witness for testimony to the judge for ruling and back to the clerk.15 Although the technology allows for sharing documents on the screen, not many of us are fully proficient with that technique (yet). (Maybe my MDEC sisters and brothers have that proficiency.) Even that method requires having all potential exhibits scanned and ready to go electronically. But the more practical technique is to exchange all proposed exhibits electronically well in advance of the hearing. Every necessary participant – counsel, opposing counsel, witness, and judge – should have the proposed exhibits with uniform numbering and the ability to view the documents on her/his own device. As long as all are literally on the same page, the hearing can proceed with clear testimony about the exhibits and the court ruling on admissibility.16 It gets trickier with exhibits or other documents used solely for impeachment, such as deposition transcripts and interrogatory answers. Those might not be shared in advance, but the lawyer planning to use them still has to be prepared with them in electronic form.
As I mentioned above, our court accomplished four civil jury trials in October and early November, before the pandemic forced another suspension of jury trials. The trials themselves were in-person events in the courtroom, but we did jury selection remotely. We had some entirely “virtual jurors” who never reported in person. They participated entirely by Zoom from home or another location. To avoid excluding jurors who either did not have technology or chose not to use it, other jurors reported in person but participated in jury selection from an electronically equipped room in the Mitchell Courthouse. The trial lawyers got to see and hear every prospective juror on screen for individual voir dire. That was obviously not an in-person interaction, but it may actually have featured a clearer face-to-face opportunity for observation. Virtual jurors had the luxury of being in their private settings and not having to wear masks at all. In-person jurors were given clear masks to make more of their faces visible. In some cases, the lawyers may even have derived some information or impression from the setting in which a virtual juror appeared that would not have been provided in a courtroom setting. I will leave it to the trial lawyers in those cases to rate the effectiveness of the process from the standpoint of whatever intangibles they seek from voir dire, but from the court’s perspective the process was fully effective to explore any basis to excuse a juror for cause.
We also have had new experiences with “hybrid” proceedings, in which some participants are in the courtroom and one party or one witness appears by electronic means from a remote location. There is nothing new about this. Even under former Rule 2-513 a witness might have testified by telephone. But the technology is improving. I anticipate increasing instances, for example, in which an expert witness appears “live” but remotely in a jury trial. The witness can now be connected by audio and video through Zoom, with the video displayed for the jury on the large evidence presentation monitor.17 This is much like presentation of a de bene esse deposition, but with the dynamic of live questioning by both sides. This could be driven now by pandemic travel restrictions, but it offers significant advantages in terms of scheduling difficulty and cost.
The ultimate question is whether conducting a proceeding remotely impairs either the ability to determine credibility or opportunities for persuasion. For legal arguments, including arguments on issues that are heavily fact-based, remote proceedings are a full substitute for courtroom hearings. I can achieve my objectives of clarifying a position, getting one party’s response to the opposing party’ position, and focusing on necessary points to the same extent I can do that in the courtroom. I emphasize here the value of the attorney using video even in purely legal arguments. That extra dimension is an important part of communication and persuasion. I have also been satisfied with my ability as a factfinder to assess the credibility of witnesses in remote hearings. Much of the stuff of credibility – the witness’s opportunity to observe, consistency with other evidence, and consistency with the witness’s own prior statements – is not dependent primarily on the mode of testimony. Most of the aspects of credibility that are based on demeanor – tone of voice, cadence, reaction time, patience, impatience, defensiveness – are well gauged if the audio and video connections are good. Some nuances of body language may be either better or less well observed by remote means. An eye roll or smirk, for example, may be more obvious by face-on, high quality video. In a longer trial, a party’s demeanor at the counsel table in the courtroom may have some value that could be lost with more limited video participation. Without minimizing the importance of these nuances in some cases, remote proceedings are sufficient for making necessary credibility determinations in the great majority of cases.
The true test will be how many remote proceedings stay remote once the public health imperative of the pandemic subsides. Human connections and communications are too nuanced to make electronic proceedings the full equivalent of in-person courtroom proceedings. Jury trials, where the factfinders are lay people, will probably remain almost fully in-person proceedings. But the pandemic has forced the development and refinement of high-quality virtual proceedings. For a significant range of proceedings in which the sacrifice in lost nuance is minimal, like pre-trial or scheduling conferences and even legal arguments on motions, the efficiencies of virtual proceedings likely will outlast the reason we went virtual in the first place. Necessity has been the mother of invention.
- The author is a judge on the Circuit Court for Baltimore City. These are my own views. They do not reflect policies of the Maryland Judiciary as a whole or the Circuit Court for Baltimore City.
- That was 1981. See https://en.wikipedia.org/wiki/Hollywood_Squares (last viewed Nov. 23, 2020). The original Peter Marshall-hosted version aired for fifteen years, most of them with Paul Lynde in the powerful center square position. Id. Revivals extended as late as 2004, including several years with Whoopi Goldberg as executive producer and center-square inhabitant and later center-square appearances by Ellen DeGeneres, Alec Baldwin, and Simon Cowell. Id.
- 195th Report of the Standing Committee on Rules of Practice and Procedure (Feb. 6, 2018) at 7 (available at https://mdcourts.gov/sites/default/files/rules/reports/195threport.pdf) (last view Nov. 23, 2020).
- Thus, Rule 2-802 now allows “one or more participants or all participants to participate in a non-evidentiary proceeding by means of remote electronic participation” and authorizes a county administrative judge to “direct that specific categories of non-evidentiary proceedings routinely be conducted, in whole or in part, by remote electronic participation.” Md. Rule 2-802(a) and (b) (emphasis added). Parallel provisions of Rule 2-803 apply to evidentiary proceedings. The Court of Appeals at the same time repealed Rule 2-513, “Testimony Taken by Telephone,” which exemplified the more limited concept of one remote participant electronically joining a conventional courtroom proceeding.
- The rules provide standards for when remote proceedings are and are not appropriate. Remote non-evidentiary hearings are presumed to be appropriate “unless, upon objection by a party, the court finds, with respect to that proceeding, that remote electronic participation would be likely to cause substantial prejudice to a party or adversely affect the fairness of the proceeding.” Md. Rule 2-802(a).
- Md. Rule 2-804(a).
- Being in a non-MDEC jurisdiction compounded the challenges many times over. There is a whole separate story to be told about accomplishing the most basic work tasks using a paper-dependent system that is oriented almost entirely to communication by ordinary mail.
- Both platforms have advantages. In very broad terms, I found that Skype offered some advantages on the administrative or back end, probably because it is a Microsoft product and integrates better with Outlook for scheduling purposes. But the public, including lawyers, seemed less familiar with Skype. Zoom quickly became more attractive to more people, and the Judiciary became licensed with Zoom for Government. The waiting room and breakout room features in Zoom are particularly useful for certain types of proceedings.
- This by no means exhausts the steps needed to ensure full access to the courts. Some participants may not even have a telephone or may have other limitations that prevent participation.
- In our court, the issues were frequent enough to prompt Administrative Judge Audrey Carrión to issue Administrative Order No. 2020-12 to remind all participants in remote proceedings of some basic rules of decorum including that they “ensure that distractions are not present, such as driving.” See http://www.baltimorecitycourt.org/wp-content/uploads/2020/10/Admin-Order-2020-12-10.29.2020-3.pdf (last viewed Nov. 23__, 2020).
- A nifty feature of Zoom is that your spacebar operates like an old-style microphone button to toggle between mute and unmute. In a particularly interactive hearing, that can make it easier to obey Rule 1 without fumbling with a mouse to find and click the on-screen button.
- A corollary is to avoid careless use of the electronic meeting invitation. We occasionally see counsel trying to use those invitations to communicate privately with their clients or witnesses. Reply all is a dangerous thing, and lawyers need to be very careful about where these communications go.
- I can’t offer hard data on this, but as we moved from Skype to Zoom, the regularity of both lawyers and non-lawyers using video during proceedings increased substantially. Part of that may have been people getting more accustomed to video participation generally; part of it may have been people acclimating to Zoom much more quickly than to Skype.
- Even in the in-person realm, this should not happen. Counsel should have provided opposing counsel with all proposed exhibits in advance, and they should all be pre-marked.
- The judge then has to be careful after the fact to make sure that all exhibits actually used – either admitted or only marked for identification – are printed to become part of the record.
- In our court, this is a greater technical challenge than one would imagine. The separate audio systems of CourtSmart recording and amplification and the Zoom conference on several devices don’t get along when they operate at the same time in one courtroom. Our fantastic Court Reporters’ Office has devised an effective solution that is now available in several courtrooms.