By Debra Bulluck and Eric T. Cooperstein
Here’s a pandemic experience that will be familiar to many lawyers. You represent a client on a routine motion. Instead of driving to the courthouse, arriving well in advance because of the unpredictability of traffic and parking, and waiting for the hearing to begin, you log into a Zoom link 10 minutes before the hearing is set to begin. The judge conducts a 20-minute hearing and you’re done. You log off and move on to your next matter. No walking to the car, driving back to the office, parking, etc. You bill the client for 30 minutes instead of an hour and a half or more. Yes, you billed less on that matter, but you gave the client better value for her money because you charged only for legal services, not for driving and waiting.
As the light grows larger at the end of the pandemic tunnel, thoughts are increasingly turning to how lawyers and law firms will operate as restrictions on in-person meetings, group activities, work environments, and court appearances fade away. Since people are creatures of habit, there will be a tremendous pull to return to old ways: managing paper files, in-person court appearances, commuting in the snow to an office to do the same work you have done from home for over a year. Left to their own devices (so to speak), it might be an open question whether lawyers will continue to leverage the technologies and efficiencies they learned during the pandemic. The court system, however, is poised to lead the way in integrating lessons from the pandemic into the practice of law.
Early Adaptors
Let’s take stock of how the state court system has adapted and embraced the challenges of the pandemic. Honestly, it’s a little weird to argue before the Minnesota Supreme Court from your bedroom, worried that during your argument the mail carrier will arrive and your dog will freak out. But all court hearings were conducted remotely during the first two months of the pandemic and Chief Justice Lorie Gildea reports that even after courthouses reopened, three-quarters of all cases were still being handled remotely. Remote interpreting went swiftly from a goal to a reality, saving interpreters’ time and making them more available, particularly in remote counties. Some districts have created “Zoom Rooms” in their courthouses to allow litigants access to technology to participate in otherwise remote hearings without compromising their safety. The treatment courts not only made the transition to remote hearings but also learned that some participants engaged more deeply when they could do so from their homes.
On the back end, the part that the bar and the public do not see, Chief Justice Gildea implemented a variety of new tools, from weekly “Stay in Touch MJB” emails to judges and court staff to keep them abreast in real time of Court operations to the Remote Hearing Workgroup, a small team appointed by the Chief at the onset of the pandemic. The workgroup, composed of court administrators and IT experts, explored technologies that would allow the district and appellate courts to begin conducting hearings remotely and provided an array of training materials to help all stakeholders adapt to our new reality.1
Access to (Virtual) Justice
The repercussions of these technological changes for the affordability of legal services and access to justice are clear and affect the profession at all levels. The Legal Aid or pro bono attorney can handle more matters, faster, through remote video appearances. The middle-income party who might otherwise be forced to appear pro se may be able to afford counsel, which benefits both the party and the court system. No higher-income or corporate clients are going to be disappointed if the cost of their litigation goes down.
Jean Lastine, executive director of Central Minnesota Legal Services (CMLS), notes that many hearings in family court, such as Initial Case Management Conferences, pretrials, and post-decree motions, have worked well remotely. CMLS was fortunate to receive a grant at the beginning of the pandemic to upgrade its attorneys’ technology. Like the district courts, CMLS has developed accommodations for low-income clientele whose access to technology is limited. For example, for remote trials, CMLS has found it more effective to bring clients to its office to access a remote hearing (while socially distancing, of course). Overall, the attorneys at CMLS appear to appreciate not traveling to the courthouse all of the time. By reducing the travel time, Lastine recognizes the potential of being able to serve more clients. Like other businesses, CMLS will be evaluating whether its office footprint can be reduced, potentially freeing up funds to serve more clients.
The New New Normal
Chief Justice Gildea recognizes that the courts have the opportunity to retain the best of what has been learned about work during the pandemic and institutionalize it. In early summer 2020, the Minnesota Judicial Branch conducted a survey of judicial officers and staff across the state to examine how they were adjusting to the “new normal.” Remarkably, eight out of ten respondents wanted remote hearings to become a permanent fixture in our justice system going forward.2 There have been unexpected benefits of remote hearings. For example, the Chief Justice notes that there has been a significant decline in the failure-to-appear rate in child-support hearings. The judicial branch is already investing in server infrastructure for MNCIS (Minnesota Career Information System) to ensure it is prepared for long-term reliance on technology and future upgrades to the MNCIS platform.
Even more changes may come down the line. Calendar calls are functional for the courts but expensive for parties. The expense is not solely in dollars paid to attorneys: many middle- and lower-income parties have to take time off from work to attend court hearings. Our court system places a great burden on them when they have to take off a half-day of work, pay for parking or transportation, or find childcare just to attend a 15-minute court appearance. To this end, the judicial branch is exploring the feasibility of allowing attorneys and self-represented litigants to choose hearing and appointment dates and times through an online scheduling system. On the domestic abuse calendars, feedback overwhelmingly suggests that parties feel safer appearing remotely and there tends to be a shorter wait time. As noted, remote hearings have made it easier for parties to make their court appearances. The pandemic has shown us that there are alternative ways of managing these calendars that are centered more on the parties, which benefits the system as a whole.
Part of access to justice is maintaining the general public’s access to court hearings even though they take place on a remote platform. Anecdotally, members of the public have contacted the court’s clerk to obtain a Zoom link for a hearing they wished to attend. Thus far, the remote platform has not deterred the public from observing in the virtual gallery, and it still attracts observers, such as the occasional law student and family member.
In considering the future use of remote technology, Chief Justice Gildea notes, “First and foremost, we need to make sure remote hearings work for those we serve.” Additional surveys are rolling out. These upcoming surveys to court users and attorneys will be crucial in identifying needed improvements and determining the appropriate role of remote hearings going forward. According to Chief Justice Gildea, within the Minnesota Judicial Branch, a few project teams have been formed to tackle issues such as “developing a statewide solution for managing electronic exhibits; implementing processes to help with remote hearings, such as online check-in for court hearings and creating an electronic process for filing public defender applications; and ensuring that those who do not have online access are able to attend hearings at courthouses or other public locations.”3
To be sure, remote hearings may continue to present their own challenges. For one, it is not clear that we are all operating with the same notion of what courtroom decorum looks like in a remote hearing. We do not yet know how litigants’ and witnesses’ perceptions of court change when appearing remotely. There have been stories of litigants driving, lying in bed, eating, and turning cameras on and off at will during hearings. Attorneys have shown up for remote hearings in sweatshirts-—and worse! We have all spent Zoom-time looking at another person’s forehead or a dark silhouette against a bright window. Not all bandwidth, internet speeds, and devices are created equally. Lastly, although civil matters have fared well by being able to use remote technology, our criminal counterpart has mostly postponed its hearings. In a post-pandemic world, it is unclear to what extent criminal proceedings will utilize remote technology.
The Future is Now
The pandemic has highlighted the adaptability of the Court and court users. So long as the Courts continue to think outside the box to meet court users’ needs, remote hearings have a promising future. The legal profession, notorious for the snail’s pace at which it evolves, has been thrust forward into the future. The message for lawyers is clear: we are not going back to the way things were. If you haven’t already bought that upgraded microphone headset and camera, now would be a good time. Lawyers must master the technology, including remembering the “little” things (i.e., taking oneself off mute, screen sharing only documents you want others to see), paying attention to your background and lighting, learning how to share documents during hearings, and packing extra patience while navigating the internet lags during remote hearings. When we get to the other side of the pandemic tunnel, remote technologies will continue to play a central role in the judicial system, improving both access to justice and the practice of law.
Debra Bulluck (she/her), is an Alabama native and University of Wyoming College of Law graduate (‘18). Ms. Bulluck relocated to Minneapolis to practice family law. Currently, she’s a judicial law clerk for the Honorable Mary Madden (Family Justice Center).
Eric T. Cooperstein, the “Ethics Maven,” defends lawyers and judges against ethics complaints, provides lawyers with advice and expert opinions, and represents lawyers in fee disputes and law firm break-ups.