Legendary jurist Oliver Wendell Holmes wrote that “hard cases make bad law,” by which he meant that a legal rule fashioned for an extraordinary circumstance can be inappropriate for the resolution of everyday disputes.
Holmes’ century-old aphorism was recently invoked by several experienced litigators in a discussion about the merits of virtual justice and whether online trials should outlive the exigencies of the current COVID-19 pandemic. These litigators are concerned that virtual proceedings are lacking critical attributes that have historically helped judges and juries reach a fair and socially acceptable resolution of legal disputes.
There’s no doubt that online proceedings are efficient. Less than a year into the pandemic, Texas announced on Feb. 5, 2021, that its approximately 2,000 judges had conducted one million virtual hearings since March 2020. That number far outstrips the pace of prior in-person proceedings, and there’s little doubt that virtual hearings will play a leading role in working down the case backlog, in Texas and across the United States.
Unlike virtual hearings used to resolve myriad pretrial and post-trial disputes, all of which involve a small number of trained professionals, virtual jury trials raise a number of thorny issues — mostly involving fairness to the parties and the widespread conviction among litigators that advocacy online is a poor substitute for the crucible of a live courtroom.
However, there is a cost to both the efficiency and convenience of virtual trials. According to trial specialists who spoke during the American Bar Association Litigation Section’s recent panel discussion on virtual trials, the cases they’ve litigated over Zoom (or similar remote conferencing technologies) have raised many concerns. Virtual trials, they said, are different due to:
- diminished opportunity to assess the credibility of witnesses
- diminished emotional impact of witness testimony
- diminished impact of exhibits presented in electronic format
- diminished opportunity to assess the attentiveness of jurors
- greater difficulty to select and connect with jurors
- different demographics among jurors available for service
However, virtual trials have one strong positive attribute — jurors like them. During post-trial interviews, jurors are telling litigators that they appreciate the convenience of being able to serve on a jury remotely.
Online Just Isn’t the Same
“I think that virtual hearings are here to stay because the courts are convinced that it is a more efficient use of both the court’s time and the lawyer’s time,” said Ricky Raven, a partner at Reed Smith in Houston.
Jury trials are another matter entirely. Picking a jury virtually is a challenging endeavor. Raven recently completed a 55-day virtual jury trial. “It’s very difficult to pick a jury on Zoom, because if you believe as I do that the practice of law — particularly trial work — is a person-to-person business, you want to be there to observe the demeanor of the people you’re talking to, particularly in the voir dire process,” he said.
Raven added that, when selecting a jury, he wants to be able to observe the demeanor of all members of the venire while he was questioning a particular potential juror. The opportunity to develop a rapport with an individual juror is missing in a virtual trial. “I want to be able to observe their demeanor, and draw my own conclusions based on my experience, whether that person will be able to be an effective juror,” Raven said. “I think any serious lawyer, when given the opportunity, would want that.”
Based on his experience, Raven thinks judges have been more reluctant to grant juror challenges for cause in a virtual proceeding. Juror attentiveness is also an issue, he said.
Seeing “the Whole Witness”
Paula Hinton, a partner at Winston & Strawn in Houston, similarly advised against the widespread use of virtual technology for jury trials. The lawyer’s and the court’s ability to see “the whole witness,” particularly the witness’s facial expression, is lost in a Zoom setting.
Hinton said she has concerns that the impact of exhibits and documents is diminished when they are presented to the jury via a computer screen. “I worry that some of the impact of my exhibits is lost if I have to do those remotely,” Hinton said. “That’s a real issue that is occurring every day.”
Virtual trials are also missing the interaction among jurors that occurs when they pass to each other — and discuss — physical documents and exhibits, she said.
Raven remarked that, in his experience, the composition of juries for virtual jury trials seems different than is the case with in-person trials. Virtual jurors to skew those who are more educated and more conservative and have more management responsibility. “I think it has a direct impact on who shows up and who has a willingness to participate in the process,” he said.
Virtual Evidence Can Fall Flat
The emotional impact of live testimony can be diminished when delivered virtually.
Raven described a recent trial where the opposing party gave compelling testimony, albeit remotely from his living room. “I certainly didn’t think that the plaintiff’s lawyer thought the testimony delivered the emotional punch they wanted,” Raven said. “I don’t think it resonated with the jury, and I think that was primarily because we were virtual.”
Hinton said that she believes she connects better with witnesses when she is addressing them in person. She said she appreciates the court-supplied jury minders — the folks who make sure jurors are paying attention during the trial — but that she herself wants to fulfill that role.
Hinton recounted a recent jury research session. The focus jurors had viewed testimony remotely presented by several smart, unobjectionable witnesses. So what caught the jurors’ attention? The cat that walked behind a witness. The fact that one witness did not wear a suit.
“It was striking to me to listen to the jury focus group members have such strong negative reactions to almost every single person who we presented by video from their deposition,” Hinton said. “It scares me that we’re losing that human aspect.
Virtual Trials: By Party Consent Only
Hinton said that virtual hearings — not trials — are generally a good development. Not only for the efficiencies they provide, but also as an opportunity to develop young lawyers. Hinton said that if technology permitted judges to grant a greater number of hearings on pretrial motions, then younger lawyers would be the beneficiaries because that would create opportunities for them that they otherwise would not have had.
Trials are a different matter, she said. After the pandemic passes, virtual trials should take place only if both parties agree. “I think we need to go back in person for our trials,” she said. “I think it makes a difference.”
Raven urged a cautious, deliberate approach. “Although there are some efficiencies from being virtual, I do think that we ought to proceed with a great deal of caution,” Raven said. “There are some real due process concerns that need to be worked out before we adopt this strategy.”
Perhaps the Holmes expression most aptly applied to virtual proceedings is not the one about hard cases, but instead the most famous sentence he ever wrote: “The life of the law has not been logic: it has been experience.” The future course of virtual proceedings may be charted, not by logical calculations of cost and efficiency, but by the extent to which judges and litigators use technology to resolve disputes in a manner widely accepted as fair to all parties who come before the court.