Courts Encouraged to Standardize Remote Hearing Procedures

Although remote court hearings continue to be afflicted by technical glitches and stressed-out judges tethered to their computers for hours on end, the benefits of remote hearings are worth investing the time and resources necessary to make them a permanent, reliable part of the administration of justice in this country.

Everyone, it seems, benefits from remote hearings. They improve access to courts in both civil and criminal matters. They move cases forward in even the most trying times. They’re efficient and capable of bringing geographically distant litigants together in the same virtual space. And — surprise — remote hearings appear to have a calming effect on litigants in emotionally charged proceedings.

The National Center for State Courts in Williamsburg, Va., has been examining the experiences of courts with remote hearings since 2020. Recently, the organization released the results of several studies that looked at state court’s experiences. One such study looked at the Texas judicial system where, during the height of the COVID-19 pandemic, upwards of 85% of judicial hearings were conducted remotely.

When compared to in-person hearings, remote hearings studied by NCSC took 34% longer to complete. Specifically, the average time for an in-person hearing was 52 minutes, whereas remote hearings took an average of 70 minutes to complete.

NCSC found good news and bad news when it probed the reasons for the disparity.

According to Suzanne Tallarico, a researcher with NCSC, “technical difficulties, including problems by users of logging in, and bandwidth limitations, particularly in rural areas” were primarily responsible for inefficient remote hearings. Lack of preparation was also identified as a cause for drawn-out remote hearings.

On the bright side, NCSC researchers discovered that — relative to in-person hearings — fewer parties defaulted in civil hearings and fewer criminal defendants failed to appear for their hearings. Additionally, greater numbers of individuals are participating in remote hearings relative to in-person hearings, another factor that caused remote hearings to run longer.

Tallarico presented the top-line takeaways from the Texas study during an April 14 NCSC briefing. She said there are indications that attorneys and parties are becoming more proficient with remote hearing technology in time. “Issues around technological problems are decreasing as people become more familiar with the software,” she said.

NCSC researchers identified several benefits arising from remote hearings:

• Improved court access. Remote technology makes it easier for individuals to participate in court hearings and makes it easier for greater numbers of individuals to participate in a single hearing. Parties, lay witnesses, crime victims, expert witnesses, and other stakeholders who may live far away from the courthouse can all be heard in a remote hearing.
• User-friendly justice. Remote hearings provide a less intimidating atmosphere for parties and witnesses. Tallarico said there’s evidence that parties are better able to control their emotions during remote hearings, thereby promoting better outcomes in emotionally charged proceedings such as divorce.
• Attorneys support remote hearings. Overwhelmingly, attorneys believe that remote hearings can be an effective and efficient way to move cases through the system. With remote hearings, attorneys are spared travel time from courtroom to courtroom or from courthouse to geographically distant courthouse.

This is not to say that remote hearings are not without their challenges. The leading drawbacks to remote hearings today are “digital divide” problems and judicial burnout arising from conducting large numbers of remote hearings consecutively with few opportunities to rest and re-charge. Specific problems identified by NCSC are:

• Digital divide. Not all court users have the right equipment to effectively participate in remote hearings, and not all court users are proficient with the leading remote hearing software programs.
• Judicial inefficiencies. The nature of remote hearings prevents judges from intervening informally with the parties to promote settlements. 
• Language interpreter woes. Remote hearing participants are reporting problems with hearings that involve interpreters. The interpreter section of the Zoom videoconferencing platform is clunky, creating delays. Also, interpreters are not getting the breaks they need to remain sharp.
• Judicial burnout. Remote hearings are proving stressful for judges. From early in the COVID-19 pandemic right up to today, many judges have shouldered the administrative burden of setting up links to remote hearings, teaching lawyers and parties how to use the software, and addressing technical problems that crop up during remote hearings. Also, great numbers of remote hearings are being held, back to back, with few breaks in between.

Despite these challenges, remote hearings provide compelling opportunities for courts to improve the administration of justice in their communities. The problems identified by NCSC all appear to have ready solutions.

Recommended Guidelines for Remote Hearings 

Tallarico’s group developed nine recommendations based on the results of their study of the Texas courts’ experience with remote hearings:

1. Court systems should consider hiring “technical bailiffs” to schedule remote hearings, handle in-hearing technical problems, and train participants on how to operate whatever technology is being used by the court.
2. Court administrators should create guidelines for determining when a hearing should be conducted in-person or remotely. Courts in Maryland, Arizona (PDF), Minnesota, and Connecticut (PDF) have already released guidelines for conducting remote hearings.
3. Court administrators should develop a uniform, consistent process for scheduling remote hearings. Efficiency is important, but courts should also be mindful of the schedules of the attorneys who practice in their courts.
4. Participants in remote hearings should receive clear instructions on how to effectively participate in remote hearings. If it is determined that a participant lacks adequate reading skills, then the necessary information should be imparted via video or some other comprehensible medium.
5. Courts should ensure that participants understand proper courtroom decorum and other expectations such as timeliness, proper dress, and acceptable locations from which to access the hearing (in other words, not a bathroom, bar, or other noisy, distracting environment).
6. All necessary paperwork should be completed and uploaded prior to the beginning of the remote hearing.
7. Courts should take care to evaluate the technical expertise of hearing participants before scheduling remote hearings.
8. When interpreters are used, the non-English-speaking party’s attorney should be given the responsibility of briefing and training the interpreter on how to use the court’s remote hearing technology.
9. Courts should take measures to alleviate “judicial burnout.” Numerous consecutive hearings should be avoided, and breaks should be scheduled during and between hearings.

Given the clear benefits of remote hearings, there’s little doubt that courts will soon be rapidly adopting most of the NCSC recommendations and adding a few additional improvements of their own.

“The use of remote hearings provides an opportunity for courts to improve the overall court experience for court users by allowing participants to engage in hearings in a way that they feel safer, more comfortable, without having to miss work, or attend to other issues that they don’t need to attend to when they are able to attend from their home,” Tallarico said.