Virtual Open Court
The Bencher—July/August 2020
By Judge Kimberly C. Priest Johnson
Over the past couple of months, throughout the COVID-19 pandemic, I held open court exclusively in a virtual, rather than physical, space. I conducted remote civil hearings, both procedural and substantive, some by phone and others by video conference, including evidentiary hearings, with the presentation of documents and/or live witness testimony. Moreover, over the past month, I presided over initial appearances and arraignments, detention hearings, and other criminal hearings, again, many of which included documentary evidence and live testimony.
Exemplars of Virtual Hearings
Highlighting a few examples, the court held a virtual hearing in a patent case on both a motion to dismiss on Alice grounds and a motion to transfer venue. Counsel was physically located in Delaware; California; Washington, DC; Illinois; and Texas. This hearing proceeded exceedingly well. Importantly, the parties conducted a “trial run” with the court’s staff prior to the hearing to ensure each person’s login and setup was working smoothly and to troubleshoot any other issues. In accordance with the court’s “Standing Order Regarding Hearings by Telephone or Videoconference in Civil Cases,” the parties provided the court (and exchanged) demonstratives and exhibits prior to the hearing and thus were able to refer to such demonstratives/exhibits throughout the hearing, making for an effective oral argument.
Similarly, the court held an all-day virtual hearing on a motion for preliminary injunction, which included demonstratives, exhibits, and live witnesses. In this case, counsel was dispersed throughout the United States and witnesses testified from around the world. In large part because of the trial run with the court’s staff prior to the hearing, and the early exchange of exhibits, demonstratives, and identification of witnesses, the hearing proceeded smoothly.
Finally, the court held a virtual detention hearing, involving four defendants (all of whom were detained in a local jail), four separate defense attorneys, a federal prosecutor, a federal agent, four separate witnesses, the court and its support staff (in chambers), a law clerk (logged in remotely), and an observing judicial intern (located in Florida). The defendants appeared virtually from two different jail cells, and each defense attorney appeared virtually from his home. The prosecutor and the agent appeared virtually, but together, sitting physically distanced at a conference table.
While the hearing was successful, it did present some challenges. Paperwork, which would usually have been passed physically between the parties before the hearing, was circulated via email prior to and during the hearing, causing a slight delay. Some parties had difficulty logging in and/or staying logged in, and it became necessary to call upon the court’s IT staff to help walk an attorney through the login process while the other participants and the court waited. The quality of the assorted connections varied with several users relying on Wi-Fi or cellphone signals, which are not as stable as wired connections. Despite these challenges, the court was able to effectively conduct the entire hearing and hear from all parties over a few hours’ time.
I am confident that each defendant was afforded the same caliber of hearing as would have been afforded in my courtroom. Further, the virtual hearing allowed for the remote participation of four individual proffered third-party custodians. Detention hearings typically require such witnesses to miss a day or more of work and/or travel–sometimes even across the country. Oftentimes these individuals testify to assist a family member; however, in becoming custodians, they are also volunteering to serve the community and the justice system. Providing greater access to the court process at lower personal cost to such individuals is a tangible benefit the courts are able to offer to the community they serve through virtual hearings.
A little glimpse into the technology my court has employed: I coordinated with our IT team, as well as the local jails where individuals are detained, to take advantage of CISCO bridges. A specific thank you is warranted to our IT staff, who have made everyday virtual hearings possible and seemingly effortless; to the U.S. Marshal Service, who has been physically present at the local jails to assist the jails’ staff, as well as the defendants, during the virtual hearings; and to the local jails, as without their cooperation and dedication, virtual hearings for detained individuals would not be possible.
The CISCO bridges are dedicated virtual spaces that allow courts to hold secure hearings without relying on products such as Skype and Zoom. Skype and Zoom have proliferated since the COVID-19 pandemic has forced businesses and institutions across the world to adapt to a need to maintain physical distance. These products certainly have their uses. For example, I conducted multiple lectures through Zoom for my law school students throughout Dallas’ shelter-at-home period. These products, however, present a number of challenges for use in court proceedings, namely control and privacy concerns. Zoom, for example, relies on at least some servers outside of the United States and has not consistently provided end-to-end encryption.
The CISCO bridges employed by the court run on dedicated servers in California. The United States courts own a number of servers, and districts around the country can be assigned a block for purposes such as virtual hearings. In this way, courts can exercise substantial, administrative control at a local level. The bridges allow for connections from mobile devices, laptops, desktops, and traditional video conference carts. Courts have the ability to record all video conferences, as well as to record directly to the court record when conducting virtual hearings. Currently, I am using an established bridge for criminal cases and a newer bridge for civil matters. There have been considerable advancements in the quality and services of the bridges between the establishment of the first and second bridge and, should the court continue to operate in part or in whole in this virtual sphere, we hope to update the criminal bridge.
Set forth below are a few suggestions based on my personal experience to ensure a successful virtual hearing:
1. Conduct a trial run prior to the hearing.
I have found that the best tool the court and parties can employ to ensure a successful virtual hearing is to hold a trial run prior to the hearing. Even when parties have attempted logging in on their own, doing so as a group helps better assess issues that are more difficult to assess alone, such as sound levels, whether others can see the presenter’s video, and other technical issues. If the court cannot host a practice session, the parties are encouraged to run tests with opposing counsel. The court may help facilitate prep sessions or the parties may be left to request a time to use the court’s bridge on their own.
2. Submit and exchange exhibits and other documents prior to the hearing.
Virtual hearings require parties to streamline their presentation–it is simply not feasible to approach the bench or quickly pass papers to opposing counsel. Using digital documents makes sense theoretically, but in practice, the screens used by each party are often best used solely for the purpose of engaging in the virtual room–watching the other individuals and presenting to the camera to bring a sense of presence to the proceeding. Accordingly, the parties should submit to the court and exchange with opposing counsel all exhibits, demonstratives, identification of witnesses, and/or other physical materials prior to the hearing. Objections to the admissibility of exhibits and other documents should be addressed prior to the hearing to permit all such documents to be published with ease throughout the virtual hearing.
3. Prepare for audio challenges.
Virtual hearings can be very difficult when there is ambient sound and microphone feedback. As a first level, the parties should habitually mute their microphone when they are not speaking. The parties may hear only ambient noise from their own setups, but when multiple individuals are participating, small noises add up and make communication difficult. Second, do not talk over other parties. While lawyers/witnesses should not talk over each other in hearings, this is particularly important in virtual hearings. Multiple voices talking over each other in the virtual format can quickly become entirely unintelligible. Counsel should afford the speaker an opportunity to finish his or her answer before interjecting. Third, the parties should have access to headphones. Even if they do not use them initially, many sound issues can be quickly solved by the use of headphones, as they ensure that the parties’ microphones do not pick up the audio through the speakers and create a feedback loop. The refrain should be focus on clear communication above everything else.
4. When possible, conduct direct examination in person.
Keeping in mind physical distancing guidelines, direct examinations during which an attorney and a witness can appear from the same room are most effective. Particularly, such examinations proceed clearly and without any sound delays. While this tactic must be evaluated on a case-by-case basis, where possible, having witnesses who will offer a great deal of information through direct examination present at the location of the examining attorney has proved to be helpful to overall efficiency and clarity.
While current technology is satisfactory, it remains new for many judges and counsel, and there remains logistical, IT, and individual challenges, as well as issues with internet bandwidth and access. There is also an inherent delay in virtual communication. My advice to avoid frustration: Focus on the positives and ways things can be improved, and extend a little bit of grace to participants. My experience has been that people are making a genuine effort and will work on getting better at this format over time.
In my opinion, the identified challenges are worth meeting so that virtual hearings can be incorporated into the regular business of the court. As an advantage over telephonic hearings, the parties can see who is speaking and when a party is ready to speak. Additionally, it is possible to see if the parties who are listening are actually able to hear the speaker–a frequent challenge in telephone hearings.
The greatest advantage, however, is the ability to include individuals in hearings at a low cost and without travel. This includes not only attorneys who may be spread across the country but also witnesses across the world or for whom a physical court appearance would present difficult challenges, whether for professional or child care reasons, or for those with accessibility challenges, be it disability, age, or health issues.
Virtual hearings can help connect and deploy translators for every language who may not be easily available in every district. The bridge can be used for live observance and education, accessible by media and members of the public. For those who take seriously the value of an “open court,” virtual hearings present the greatest opportunity to drastically expand access to participation and observance of court proceedings. For civil rights concerns, virtual hearings present the possibility of quicker processing, less time waiting in detention for court appearances, and limiting travel from jails to courthouses. In addition, court security can avoid issues related to transportation and court appearances of detainees.
We are closer to the beginning of this journey than the end, but in a time where it is often easy to become frustrated or pessimistic with the ways each and every one of us has had to adapt to the challenges presented by COVID-19, the particular advancement of the virtual hearing is cause for some optimism. While not a perfect substitute for in-person hearings, virtual hearings can serve a meaningful role in the work of the court today and moving forward.
Judge Kimberly Priest Johnson has served as U.S. Magistrate Judge for the Eastern District of Texas since 2016. She is a member of the Paul Brown American Inn of Court in Plano, Texas. Johnson gratefully acknowledges the contributions to this article by her law clerk, Lance Henderson.