Arguments and Proposed Standards for Virtual Appearances, Redux

• Publication year: 2021
• Author: David M. Lederman, CFLS

Arguments and Proposed Standards for Virtual Appearances, Redux1

David M. Lederman, CFLS²

Virtual trials are efficient, cost effective, and allow for significantly better access to justice than "in person" trials. When the COVID-19 Pandemic caused courts to shut down across California and beyond, each of the 58 counties in California hobbled together their respective plans for reopening, both virtually and physically. Many counties began using some form of a remote hearing/trial platform, such as Zoom, BlueJeans, WebEx, Teams, and others. There are people on both sides of the well still longing for a physical reopening. They should not.

The Judicial Council of California issued its first Interim Report on Remote Access to Courts on August 16, 2021.³ The report was prepared by the Workgroup on Post-Pandemic Initiatives convened by Chief Justice Tani G. Cantil-Sakauye. The first interim report focused on remote access to courts, which, unsurprisingly, has emerged as a central issue with strong support for maintaining extensive remote access to court proceedings. The report was informed by input from forty-six different groups—including civil and criminal attorneys, law enforcement, legal aid attorneys, dependency counsel, and court staff. The Workgroup made the following recommendations:

• California courts should expand and maximize remote access on a permanent basis for most proceedings and should not default to pre-pandemic levels of in-person operations.
• The Judicial Council should encourage and support courts to substantially expand remote access through all available technology and should work to promote consistency in remote access throughout the state to ensure that Californians have equal access to the courts while providing flexibility to meet local needs.⁴

The interim report also described that "remote proceedings allow individuals who face barriers in accessing the courts (such as having to travel long distances to court or take time off work) to efficiently resolve their court matters, and that providing access to the courts through the use of remote technology is an access to justice issue."⁵

In 2006 the Administrative Office of the Courts in conjunction with the California Department of Health Services published a report titled Epidemics and the California Courts.⁶ That report urged:

In an effort to reduce face-to-face interaction and adapt to employee absenteeism, alternative means of work performance and communication should be explored, which could include:

• Allow staff to telecommute. If a telecommuting policy is implemented, the court should determine the hardware and software requirements for staff working off site as well as the telecommunications protocols and associated security to establish connectivity to the mission-critical applications.
• Use videoconference or teleconference technologies or both. For planning purposes, assume that most court proceedings included within the mission-critical functions and

[Page 15]

• other tactical objectives can be held by videoconference or teleconference under the emergency conditions described in this document.
• Increased use of video arraignments.

That report was written in 2006. By 2020 very little of those recommendations were adopted before the COVID-19 Pandemic. After the pandemic started, "we" started to use video conferencing for court appearances and trials. We learned that virtual appearances were a practical solution to in person appearances.

Prior to the pandemic, a hearing required attorneys to spend a significant number of hours traveling to court, parking, and printing physical exhibits. In the physical court days, a proceeding could proceed as follows:

Lawyer: "Let me draw your attention to page 98 of binder 2, bates stamped page 3035."

...