Observing Online Courts: Lessons from the Pandemic

• Date: 01 October 2020
• Author: Elizabeth G. Thornburg

181

Observing Online Courts: Lessons from

the Pandemic

ELIZABETH G. THORNBURG

We are all going through a signicant period of evolution, and it means,

that there’s an opportunity in that, it feels burdensome right now, because

so much has been taken from us. But there’s such an incredible opportunity,

to decide how you want to show up in the new world. Because it will be a

new world. And my greatest hope is that we don’t reach for normal, that

we reach for better.1

Introduction

Institutions tend to change slowly. Courts and the legal profession are

no exception. In fact, they are perhaps among the least agile. Sometimes,

resistance to change protects important systemic values like due process

and the attorney-client privilege. Inertia also stems from the very nature

of the common law—a system based on precedent. Doing things as they

have been done before (and as approved by appellate courts) is safe,

while innovation risks reversal and its accompanying inefciencies and

* Elizabeth G. Thornburg is the Richard R. Lee Endowed Professor of Law, SMU Dedman

School of Law. She would like to thank Judges Dennise Garcia, Emily Miskel, and Roy Ferguson

for discussing their remote hearing experiences; Professors Jenia Turner, Jessica Dixon Weaver,

Joanna Grossman, and Chante Brantley; and Denise Neary of the Berkeley Judicial Institute for

their helpful comments on earlier drafts of this Article. She also thanks Dean Jennifer Collins

for the research assistant funding that made this project possible. She would especially like

to recognize the students on “Team Zoom” whose observations form the basis of this Article:

Madie Arcemont, Drew Baker, Alexandria Amerine, Alexander Hawn, Jamie Manion, and

Taylor Santori.

1. Michele Norris, interviewed by Michelle Obama for The Michelle Obama Podcast,

“Protests and the Pandemic with Michele Norris,” SpotiFy (Aug. 5, 2020), https://open.spotify.

com/episode/0ASSMnYfKKdTpsyUUPHbli.

Published in Family Law Quarterly, Volume 54, Number 3, 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

182 Family Law Quarterly, Volume 54, Number 3, 2020

dislocation. In addition, lawyers are trained to recognize and avoid risk,

and change is riskier than relying on proven past practices.2

When change involves technology, change must overcome additional

disincentives. Although state bar ethics rules have begun to include

technological competence as a professional mandate,3 legal education

emphasizes more traditional knowledge and skills. Nor do underfunded

court systems have the resources they need to adopt new technologies,

even if they would be more efcient. Dispersed power over court decision-

making also makes large-scale change quite difcult.

And then along came the COVID-19 pandemic. To keep vital legal

processes moving while keeping participants and the public safe, courts

quickly reached for what technology could provide. “Our normally

hidebound courts are moving online with surprising speed.”4 The ve

most common adaptations, according to the National Center for State

Courts, are (1) “Restricting or ending jury trials,” (2) “Restricting entrance

into courthouses,” (3) “Generally suspending in-person proceedings,”

(4) “Granting extensions for court deadlines,” and (5) “Encouraging or

requiring teleconferences and videoconferences in lieu of hearings.”5

The move online, when coupled with a commitment to transparency

and public access to courts, created a unique opportunity. Scholars and

the general public have had a chance to observe trial-level courts holding

pretrial hearings and to see what those online hearings look like; to analyze

the challenges and opportunities they present for judges, lawyers, parties,

and witnesses; and to consider what lessons the COVID experience holds

for the future.

2. Overcoming Lawyers’ Resistance to Change, thompSon-ReuteRS legal, https://legal.

thomsonreuters.com/en/insights/articles/overcoming-lawyers-resistance-to-change (last visited

Dec. 1, 2020).

3. See, e.g., Lowell Brown, Texas Supreme Court Addresses Attorneys’ Tech Competence in

Amended Comment to Disciplinary Rule, tex. BaR Blog (Mar. 1, 2019), https://blog.texasbar.

com/2019/03/articles/texas-supreme-court/texas-supreme-court-addresses-attorneys-tech-

competence-in-amended-comment-to-disciplinary-rule/.

4. David Freeman Engstrom & Chief Justice Bridget Mary McCormack, Q&A with Sharon

Driscoll, Post-COVID Courts, SlS BlogS (July 15, 2020), https://law.stanford.edu/2020/07/15/

post-COVID-courts.

5. Coronavirus and the Courts, nat’l CtR. FoR State CtS., https://www.ncsc.org/

newsroom/public-health-emergency (last visited Jan. 10, 2021). For a resource linking to each

state’s COVID-related measures, see Links to State Court COVID-19 Websites, nat’l CtR. FoR

State CtS., https://www.ncsc.org/newsroom/public-health-emergency. For a summary as of

July 29, 2020, see nat’l CtR. FoR State CtS., CoRonaviRuS & the CouRtS, https://www.ncsc.

org/__data/assets/pdf_le/0021/42870/Coronavirus-and-the-Courts-State-Proles-7-29-2020.

pdf (updated July 29, 2020).

Published in Family Law Quarterly, Volume 54, Number 3, 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

183

Texas provided an excellent testing ground. On March 13, 2020, the

Texas Supreme Court and Court of Criminal Appeals jointly issued an

order that, among other things, provided:

Subject only to constitutional limitations, all courts in Texas may in any

case, civil or criminal—and must to avoid risk to court staff, parties,

attorneys, jurors, and the public—without a participant’s consent . .

. [a]llow or require anyone involved in any hearing, deposition, or

other proceeding of any kind—including but not limited to a party,

attorney, witness, or court reporter, but not including a juror—to

participate remotely, such as by teleconferencing, videoconferencing,

or other means.6

At about the same time, the Ofce of Court Administration purchased

Zoom licenses for all Texas judges and provided training on how to

create the required open-courts access to those proceedings on YouTube.7

Between March 24 (when the rst online hearing was held) and June 1,

Texas courts held about 122,000 remote hearings.8 During the period

6. First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket

Nos. 20-9042 & 20-007 (Tex. & Tex. Crim. App. Mar. 13, 2020), https://www.txcourts.gov/

media/1446056/209042.pdf. The court also promptly issued orders providing guidance on

crucial questions about the impact of COVID on standard custody orders and related family law

issues. See, e.g., Second Emergency Order Regarding the COVID-19 State of Disaster, Misc.

Docket No. 20-9043 (Tex. Mar. 17, 2020), https://sbotfam.org/wp-content/uploads/2020/03/

SCOTX-Second-Emergency-Order-Regarding-the-COVID-19-03.17.20.pdf (“appl[ying] to and

clarif[ying] possession schedules in Suits Affecting the Parent–Child Relationship”). The Texas

State Law Library created a web page with resources about COVID and family law (among

other topics). See COVID-19 & Texas Law, Custody & Child Support, tex. State l. liBR.,

https://guides.sll.texas.gov/COVID-19/custody-child-support (last visited Jan. 10, 2021); COVID-

19 & Texas Law, Domestic Violence, tex. State l. liBR., https://guides.sll.texas.gov/COVID-19/

domestic-violence (last visited Jan. 10, 2021).

7. Before purchasing the licenses, they had 20 judges test the Zoom platform for its

suitability for remote hearings and received positive feedback. DaviD Slayton, tex. oFF. oF Ct.

aDmin., JuRy tRialS DuRing the COVID-19 panDemiC: oBSeRvationS anD ReCommenDation

5 (Aug. 28, 2020), https://www.txcourts.gov/media/1449660/jury-report-to-scotx-nal.pdf.

Instructions for the courts are here: Court Coronavirus Information: Zoom Information and

YouTube Support, tex. JuD. BRanCh, https://www.txcourts.gov/court-coronavirus-information/

electronic-hearings-zoom/ (last visited Dec. 27, 2020). A training webinar (held on Mar. 22,

2020) can be viewed here: https://register.gotowebinar.com/recording/5079347202384081926.

Not all courts chose to use the Zoom/YouTube combination. Harris County (Houston area)

chose to post its hearings on Vimeo rather than YouTube, and some judges even used Facebook

Live. Those hearings, too, can be observed by the public, and the student observers spent some

time with courts using these platforms.

8. Erika Richard & Qudsiya Naqui, Coronavirus Accelerates State Court Modernization

Efforts, pew tRuStS (June 18, 2020), https://www.pewtrusts.org/en/research-and-analysis/

Published in Family Law Quarterly, Volume 54, Number 3, 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.