Remote Hearing Technology

By Referee Jason Hutchison

Aut inveniam viam aut faciam.
“I shall either find a way or make one.” – attrib. Hannibal

Reality vs. Nostalgia

I love trying cases—it’s one of my joys in life. Sadly, indulging my nostalgia for wood-paneled courtrooms, bankers’ boxes full of paper, and a gallery full of spectators is not practicable or responsible at present. But people still have problems that require adjudication and, as holders of public trust, our obligation is to find a way to hear cases and controversies even in difficult times. We must either find a way or make one. 

Judicial officers throughout Minnesota have taken different approaches to addressing the need for continued trial court operations during the COVID-19 pandemic. I chose to meet this need by expanding the use of remote hearing technology¹, following a series of orders for “Continuing Operations of the Minnesota Judicial Branch” issued by the Minnesota Supreme Court. For the type of work I do, remote hearing technology strikes a good balance between safety (for staff, litigants, attorneys, witnesses, and parties), responsiveness to the parties’ needs, allowing credibility determinations based on demeanor evidence, and providing a hearing that still “feels” like a hearing. 

This article will focus on the importance of “the record,” practical tips for using remote hearing technology, and some larger concerns about security and the right to public access. I want to be very clear: I am not suggesting that remote hearing technology is appropriate for every judicial officer and every case type—particularly in criminal cases. 

What Trial Courts Do and the Importance of “The Record” 

When you strip away the meetings and the non-stop emails, the trial-court life cycle of any particular case is: (i) people come to you with a problem; (ii) you hear what they have to say and make a record of what you heard; and (iii) you issue a timely order containing your decision. In some cases, you do this once. In others, you do it several times as you work through any number of pretrial issues and then a trial. 

The real concern presented by remote hearing technology is this second step: hearing what people have to say and preserving “the record.” People will still find a way to file their pleadings and papers, and you will still issue orders containing your decisions. But how will you provide that middle step using remote hearing technology? How will you give the parties a chance to be heard (and to feel confident that they were heard) by a judicial officer who was engaged with their case? And how do you make a record?

Our current courtroom culture has evolved to fill this need, but a review of the controlling law reveals that many of our assumptions about doing things “the right way” don’t have as much grounding in the law as we may think. There is a gulf between what the law requires and the practices we have all grown accustomed to. 

There are a few rules governing courtrooms (for example, Minn. Gen. R. Prac. 2.01(b) tells us there must be flags displayed or “in close proximity” to the bench when court is in session), but the key word “courtroom” is never defined. Minnesota Statutes Chapter 484 is likewise devoid of a definition of “courtroom.” Our current courtroom culture has evolved organically over time and has become so ingrained that people largely conform to our expectations, without much guiding legal authority for the practice. 

And courtroom culture varies significantly from county to county. Whatever remote hearing technology you adopt, it is important to think of it as an outgrowth of our current courtroom culture, and not a replacement for it. Based on my experience, the current technology works well in this role. So far, people who have had hearings seem to have felt that they were heard—which is the gold standard. I’ve heard people who have not participated in these hearings muse about whether they will work, but my personal experience with them indicates they can work. But much like running a trial in a physical courtroom, it is work. A well-run trial doesn’t just happen by accident; it requires constant attention to myriad details and the involvement of engaged judicial officers. 

What about “the record?” How can you make a sufficient record with participants all over the state (or globe)? When you review the Minnesota Constitution and Minnesota Statutes for guidance about what constitutes “the record” for the District Court, you find less than you might expect. Minnesota Statutes Section 484.72 tells us it’s acceptable to use “electronic recording equipment… in lieu of a court reporter” for most hearings, but that a “competent stenographer… shall make a complete stenographic record” of a few particular types of hearings.² And nothing in this statute requires the court reporter to be in the same room as any of the parties or the judicial officer—it just requires “a complete stenographic record.” 

The Rules of Civil Procedure don’t address the exact nature of “the record,” but the Rules of Criminal Procedure provide a bit more clarity, generally requiring a “verbatim record,” except where “minutes” suffice. 

The most extensive guidance on “the record” is found at Minn. R. Civ. App. P. 110-116. But the practice we have grown accustomed to think of as “how we make a record” is more a creature of habit than an obligation imposed by statute, rule, or case. Sometimes we need to change our habits when they’re no longer helpful. 

Why are we required to make a record? In short, for appeals and accountability. In almost every contested case I’ve presided over, at least one side thinks the court reached the wrong decision—and they (often) have a right to appeal. Further, we are holders of public trust. Our work—and the way we do it—is subject to public scrutiny and oversight through a combination of mechanisms: public sentiment, the Board on Judicial Standards, etc. Every record of a hearing serves two distinct audiences: (i) the aggrieved parties who want an appellate judge to say the trial court erred; and (ii) the public, writ large, through various methods for ensuring judicial accountability and excellence. 

If you’re thinking about adopting remote hearing technology, ask yourself, “How do I preserve a record in a way that (i) allows aggrieved parties to have my decision reviewed; and (ii) keeps me accountable to the public and the institutions that watch over the judicial branch?“ This simple question will help you avoid missteps as you organize and conduct your remote hearings. Keep this question in mind as external vendors try to sell you things, as internal IT people ask you to approve their solutions, and as attorneys ask you to handle things in a different way. Don’t hesitate to put the question directly to the external vendor, IT person, or attorney: How does your proposal preserve a record in a way that (i) allows aggrieved parties to have my decision reviewed; and (ii) keeps me accountable to the public and the institutions that watch over the judicial branch? If they can’t answer this question, they’re not offering a solution. They’re bringing you a problem. 

The How-To Section

I have avoided software-specific tips, so these are general rubrics and principles that I have found useful. Most of these come from my own experiences, but I am indebted to Judge Christian Sande’s suggestions after his pioneering work with OFP evidentiary hearings.

1. Almost all of the self-represented litigants who appear before me are comfortable with the technology. Most of them have used FaceTime, Skype, or similar technology to communicate with their families. Even folks without computers have smart phones with cameras—and they work just fine for this technology. I’ve had far more difficulty working with attorneys, who have varying degrees of IT support in the office and who may not have made investments in technology for a very long time.

2. Annoyance and exasperation make you look bad every time. Schedule 10-15 extra minutes for remote technology hearings. Although I’ve only had technical “glitches” in 5-10 percent of my remote hearings (far less often than I used to hear “I’m late because I couldn’t find parking”), adding this time to your calendar allows you to work through minor issues without worrying about how you’re going to start your next hearing on time. And this time isn’t wasted. If you don’t have any problems, you’ll have 10-15 minutes to organize your thoughts and outline your order after the hearing. While my sample size is small, I’ve never had a participant appear late to a remote hearing, and I’ve never had to continue a hearing for “technical difficulties.”

3. Start using the remote hearing technology to meet informally with your colleagues, and then start using it for “official” meetings. The more familiar we are with the technology, the less we think about the computer and the more we think about the people. There is a learning curve, but it’s not very steep.

4.  Remember that there are many paths to the top of the mountain. I have adopted Zoom as my remote hearing technology of choice for most purposes. My clerks send point-and-click invitations to counsel and self-represented parties, but we also include options to connect by telephone. People like options. While I’m less comfortable doing evidentiary hearings through an audio-only connection, I have no hesitation about using an audio-only link to hear oral argument in a non-evidentiary motion, or to receive an oral report from a guardian ad litem. 

5. Create a template for Outlook (or your email program of choice) that you can send out for every hearing. Mine reminds people to: 

• Be in a quiet place for your hearing. Turn off all radios and televisions in the background.
• Make sure that you have the adapter to plug in your phone or computer. 
• Write down the phone numbers in your invitation. If you get disconnected or are having difficulty with the video technology, please call in on your telephone so we can work with you to address the issue.
• Click on the invitation link at least 5-10 minutes before the hearing so you can address any difficulties without missing your hearing.
• If this is an evidentiary hearing, motion hearing, or pretrial conference, this hearing will be recorded and a formal record will be created. You, however, are not allowed to record the hearing. Any recording is a violation of Minn. Gen. R. Prac. 4.01.
• Mute yourself when you’re not speaking.
• Interpreters and court reporters are allowed to interrupt anyone (including the judicial officer) at any time in order to ensure a complete and accurate record. 

A simple template like this has worked well for my chambers, and I was impressed with how seamlessly people were able to connect by telephone on the few occasions where there were difficulties. If it were longer, no one would read it. If it were shorter, it would omit key details. 

6. Evidentiary hearings are slightly more involved. 

• Offer the attorneys or self-represented litigant(s) an opportunity to do a “test run” a day or two before the hearing. Attorneys hate to look bad in front of their clients, so they usually accept the offer, and the trial will go more smoothly as a result. 
• Determine how you will handle exhibits in advance, and tell the parties as early as possible. More judicial officers are requiring the parties to submit PDF copies of exhibits. Consider using “screen sharing” in your remote hearing software to share your “official” copy of the exhibits with witnesses. This prevents those situations where the judicial officer and the witness have slightly different versions of the same exhibit. We all know that this isn’t supposed to happen, but we’ve all seen it happen. It’s best to avoid it. Additionally, in Zoom (and most likely in other remote hearing technologies) it is possible to delegate the authority to do some of these things to your clerk. This will allow you to focus on making credibility determinations and findings of fact—the things you do best—during the trial.

7. Some people will say “It’s about time you start using remote hearing technology. I’ve been appearing remotely in federal court for years!” Others will say that they “just don’t trust this technology, and it feels too impersonal.” I’m not here to pick a side in that debate. The reality of the current situation precludes us from conducting “business as usual,” and even as stay-at-home orders are lifted, it is likely that social distancing will be required well into the future. It is probably not realistic to expect a return to packed courtrooms with several attorneys at each counsel table in the near future. I have been using remote technology to speak with stakeholder groups (like bar association sections, county attorneys, and public defenders) and key opinion leaders (like legal bloggers) in the areas where I preside. My goal is to make the use of technology more and more accepted by these folks in my district and to make the transition to using it in hearings as seamless as possible. 

8. Know when not to use remote hearing technology. If it is not a good fit for a particular case, don’t use it. Remote hearing technology is not a panacea. Certain areas of the state and certain communities do not have access to the broadband infrastructure necessary to use all of these technologies (particularly video-conferencing tools). Certain cases cannot be effectively managed from afar, for other case-specific reasons. The technology is not a replacement for good judgment.

But What About…

But what about security, transparency, the right of the public to attend hearings, and the right of the accused to a public trial? 

The question of what “security” means, generally, is outside the scope of this article. But what people usually mean by “Is remote hearing technology secure?” falls into a few categories. Often, people mean “Can people I don’t want to view this hearing get access to it?” I’m not as concerned about that question as the others, because almost all of my hearings are presumptively public. While I am mindful of the recording rules under Minn. Gen. R. Prac. 4.01 (and my orders address it), I don’t think the possibility that someone might surreptitiously view a presumptively public hearing is a good reason not to use remote hearing technology. 

The other concern is whether people can enter your remote hearing space and interrupt or hijack your hearing. As someone who was hearing eviction cases during the Occupy movement, I can tell you that sort of thing does happen in physical courtrooms too. For the most part, the security of remote hearing technology is fairly robust but requires familiarity with the specific security settings of your software. There are plenty of online resources and trainings available on how to address security issues, and many of these security issues can be managed at a district level rather than falling on the shoulders of individual judicial officers. Most concerns about security (Zoom-bombing, for instance) can be addressed in the software settings, but ultimately—much like in a physical courtroom—you need to use your skills to manage people and know how to eject them from the hearing when that is the appropriate remedy. 

There are significant concerns around maintaining public access to hearings using remote hearing technology. Most Minnesota court hearings are presumptively public. At our physical courthouses, this means that we simply leave the doors unlocked and people walk in, or out, as they see fit. But with most remote hearing technology, the court must invite people into the hearing, which adds a degree of administrative burden over simply leaving the door unlocked. If the court receives one or two requests for access, the burden is minimal. If the court receives 600 requests for access to view a high-profile case motion or trial, the burden of sending invitations would become significant, and remote hearing technology doesn’t always scale well to that many users—particularly in the context of a trial. 

There’s a second, less-recognized concern: When you walk into an open courtroom to watch a hearing, you are not required to identify yourself or state why you’re there. But if you must affirmatively contact the court and ask for a hearing invite to be emailed to you, then you are providing your contact information to the court and losing that sense of anonymity. To some extent, the presumption of open courtrooms and the ability to observe hearings anonymously promote the public’s ability to maintain awareness of its courts generally and its judicial officers. I don’t have a solution to this yet, but I certainly appreciate the problem.

Finally, I said at the beginning of this article that I’m not qualified to address the use of remote hearing technology in criminal cases. Most of the concerns raised in this article apply to criminal cases, with additional concerns about constitutional rights; victims’ rights (see Minn. Stat. Ch. 611A); the opportunity for friends, family, and communities to show support for defendants or victims; and an even stronger concern about public oversight of not just the judiciary, but also the executive branch agencies who are part of these proceedings. I will leave it to my colleagues who work in criminal law to address these issues.

Conclusion: This is Happening. Make Peace with It.

The COVID-19 pandemic has significantly changed how we do business, and remote hearing technology is one part of a larger solution. But remote hearing technology is happening, and we all need to make peace with it. I strongly suspect that even after the pandemic is “over,” it won’t go away. I hope that some of these thoughts will be useful to you, and that you will consider using remote hearing technology as you continue to serve the needs of your parties and stakeholders. 

Notes

¹ I use “remote hearing technology” in this article instead of discussing particular software products. Most of us don’t have a choice – we get what we get, so our preferences don’t matter. It’s a bit like automobiles – some people like Fords and some people like Chevys. But there are plenty of each kind on the road and they both seem get folks to the grocery store just fine. 

² Felony and gross misdemeanor offenses (except arraignments/ first appearances), jury trials, and bench trials/ evidentiary hearings.