Remote court proceedings are here to stay. What does that mean for lawyers, clients, and courts? What is gained? What is lost?
By Mike Mosedale
mjmosedale@gmail.com
In the winter of 2021, with the world reeling from a surge in covid-19 infections, a Texas lawyer made a virtual appearance in a Presidio County court hearing and, in so doing, launched a thousand memes. You probably don’t remember anything about the case (a routine forfeiture proceeding) or the name of the lawyer (Rod Ponton). But unless you lead an extremely off-line life, you likely do remember “Zoom Cat Lawyer.” Ponton earned the moniker because, while Zooming on his secretary’s computer, his image appeared on screen as a fluffy white kitten. Unable to turn off the cat filter, Ponton uttered the surreal explanation, “I’m here live. I am not a cat.”
Naturally, the footage went viral, racking up millions of views by year’s end. Ponton made a spate of good-humored TV appearances and “I am not a cat” T-shirts were sold. The whole episode seemed to capture the zeitgeist of the early Zoom court era as people everywhere found themselves befuddled by the pandemic.
At the time, of course, the use of Zoom in court proceedings was still new, or at least new-ish. Many in the legal profession still assumed that virtual court, like the virus that necessitated it, would soon be a thing of the past—a necessary improvisation to meet an anomalous moment in time.
A year and a half after Ponton’s cat filter mishap, it looks like covid isn’t going away anytime soon. Zoom court definitely is not.
In Minnesota, that reality became clear when the Judicial Council, the policymaking authority for the judicial branch, made it official that henceforth most civil proceedings in state court would be conducted remotely, with traditional in-person court reserved for evidentiary hearings, trials, and jury selection. (The future of Zoom court in criminal proceedings remains murkier. Each of the state’s 10 judicial districts has established its own protocols as courts attempt to work through an enormous backlog of cases.)
The ratification of the new rules was a consequence of the many efficiencies created by the untethering of the justice system from the physical courthouse. The benefits have accrued to clients and practitioners but, critically, to the court system itself. By June, according to Chief Justice Lorie Gildea, between 80 and 90 percent of all court proceedings were being conducted virtually.
There is no precedent for this seismic shift in the legal landscape—neither in terms of the speed with which it has taken root nor its far-ranging consequences. Yes, courts have modernized practices in dramatic ways prior to covid. Legal documents once went from longhand to type. Then e-filing came along and upended a slew of other time-honored rituals.
“But those things happened slowly. Even now, some states don’t have e-filing,” notes David Slayton, the vice president for court consulting services at the National Center for State Courts. “What we saw here—where every court in the country shifted its practices—happened in a matter of months or weeks. There has never been anything like it.”
Slayton, who until recently served as the executive director of the Texas Judicial Council, thinks most courts have adapted well. In the past, he says, instituting such monumental changes “would have taken 14 years and a dozen task forces.
“But here we didn’t have a choice. We had to adopt the Nike motto: Just do it,” Slayton adds. “It proved that we can move quickly when we need to.”
Slayton acknowledges that the exact contours of the future of remote court are not clear. But he is sure about one thing: One way or the other, it is here to stay. “I’m not aware of any state that is leaning toward going back,” he says. “There are judges who are interested in doing that. But it’s not a large percentage. I think everybody recognizes we can’t go back.”
According to Slayton, Minnesota has been a leader in its embrace of Zoom court. States like Texas and Florida have gone further into the digital future, conducting jury selection, some civil trials, and even minor criminal trials (for non-jailable offenses) over Zoom. But Minnesota was the first state in the country to codify and make permanent its protocols for the use of remote court proceedings.
Slayton says he’s quick to recommend that other states adopt Minnesota’s “idea of presumptiveness.”
“With a standard rule, there is a predictability. We think that’s a good practice for other states to follow,” says Slayton, who notes that Arizona, another leader in technological and procedural innovation, cited the Minnesota model in promulgating its own rules.
What lawyers think about Zoom court
As the executive director of Legal Aid Service of Northeastern Minnesota (LASNEM), Dori Rapaport has a lot on her plate. Her organization provides civil legal services to low-income people in a region that covers 27,000 square miles—an area that is mostly rural, bigger than Northern Ireland, and notably short on practicing lawyers. “We’re the only act in town if you’re in poverty and can’t afford a lawyer,” says Rapaport.
Historically, this reality often forced LASNEM staff to make difficult decisions. The logistics of appearing in court for one client in Duluth and for another the same day in Grand Marais, three hours away, was sometimes insurmountable. In practice, that meant that Legal Aid had to operate like an emergency room.
Zoom court, Rapaport says, has all but eliminated the need for such triage-style lawyering. As an example, she points to housing court. After the eviction moratorium came to an end, many low-income people in northeastern Minnesota faced the prospect of becoming homeless. Remote court proceedings blunted that. “Because we had virtual courts, we could coordinate all the housing hearings in one calendar. It was one referee hearing all the cases and he became a subject matter expert,” Rapaport says. “Instead of picking and choosing where we could drive to and pick which clients we could help, we could represent them all.”
The result? “We have helped 50 percent more people than we would have otherwise,” Rapaport says.
Clients are benefiting from virtual courts in other ways, too. In addition to making it easier to secure representation, Rapaport says, Zoom court takes less time out of clients’ lives by eliminating major hassles, like taking a day off work and having to line up child care and transportation.
“I think when we first started, people thought: This doesn’t feel like real justice. But why? That’s an old-fashioned, archaic view of what justice is,” she says. “Efficiency isn’t a bad thing. It helps people move on with their lives and have closure. Efficiency is good for people, not just the business aspect of the courts.”
For LASNEM, the rise of Zoom court has also made it much easier to acquire legal talent. “Hiring lawyers in greater Minnesota is the worst HR situation you can think of. We would post jobs and no one would apply. I couldn’t hire people to work in our Grand Rapids or Pine City office,” Rapaport says.
That’s less of a problem now that LASNEM has begun to post virtual positions. Recently, Rapaport hired an attorney from Walker to fill the long-vacant position in Grand Rapids, an hour away. Remote court has also made it easier to retain staff, who love the autonomy of the work-from-home option—and, at the same time, has increased the availability of pro bono lawyers in greater Minnesota.
“Rural lawyers are tapped out in terms of pro bono. The need is greater than the resources available,” Rapaport says. “Now we can bring in metro-area private attorney resources through the pro bono programs.”
Rapaport does have one criticism of Minnesota’s new remote court protocols: the presumption (albeit rebuttable) that hearings on orders for protection be conducted in-person. During the height of the pandemic, OFP hearings were remote and, according to Rapaport, her organization’s clients benefited. “It was a great service for survivors to not have to face their abusers in person—to not worry about where they are in the courtroom hallways or to not have to look for them when they’re going back to the car.”
The rule on OFPs is in keeping with the Judicial Branch philosophy that evidentiary hearings are best held in-person. Rapaport questions the underlying assumption. “I’ve heard judges say that they can’t determine credibility when people are testifying over Zoom,” she says. “I hang out on Zoom all day. I see people’s faces all day. I know when they’re full of it. I can still judge their facial expressions and body language.”
That said, Rapaport says that in her experience, judges are still granting requests to hold OFP hearings remotely when asked. It’s that sort of flexibility that makes her such a fan of Zoom court.
“We’ve seen the value virtual provides and we can’t unsee it,” she adds.
Rapaport is hardly alone in such views. Emily Cooper, founder and principal at Cooper Law, LLC in Minneapolis, specializes in family law and caters to lower- and middle-income clients. “Going remote has really leveled the playing ground,” says Cooper, noting that her firm is one of the only sliding-scale law firms in the state. In the pre-pandemic days, her services were mostly restricted to the seven-county metro area. “Now I can be in five counties on the same day from my house,” she says.
Clients prefer remote court for numerous reasons. Sometimes that’s because they don’t want to interact in person with a hostile ex. Sometimes it is simply because they don’t want to spend hours in a courthouse cattle call, waiting for their case to be heard. And Cooper has found the pro-Zoom sentiment to be universal: “I’ve yet to have a client who has a preference to being in-person for anything.”
Still, in-person court is the best option for the clients of some attorneys. Inti Martínez-Alemán, a solo practitioner in St. Paul, estimates about 90 percent of his clients are native Spanish speakers. He says he will occasionally accept a scheduling delay for the sole reason of avoiding Zoom court. “Having a Spanish-speaking client with a Spanish-speaking interpreter, it can really slow things down,” says Martínez-Alemán. “When it’s a sensitive subject—discrimination or sexual harassment—you don’t want to rely on an interpreter, especially if they have unreliable internet.”
Other attorneys say they simply feel they are more effective arguing in person. Stanford Hill, a veteran trial attorney at the Minneapolis firm of Bassford Remele, hasn’t appeared in an actual courtroom since the onset of the pandemic. “It works,” Hill says of Zoom court. “But it doesn’t work as well for me. It cuts into my advantages. I’m 6 foot 5 and I like to be standing when I’m talking, not sitting at the dining table with my cat jumping on the kitchen counter.” That said, Hill acknowledges the benefits to clients, including lower lawyer fees. As an example, he cites a case he is currently litigating in Carlton County. Instead of driving to Cloquet for a motion hearing, he made his arguments from home. That translated to one hour of billing, instead of eight.
Kenya Bodden, a veteran litigator at Thompson Coe who specializes in casualty, insurance defense, and product liability (and the current president of the Ramsey County Bar Association), says he has mixed feelings about Zoom court. The convenience for practitioners—and the increased access to justice for litigants—are undeniable. In cases involving out-of-state depositions, Bodden notes, remote technology is a practical boon. But there are downsides. “Sometimes when you’re trying to lock someone into an answer, it’s easier in person,” Bodden says. “A lot of what makes depositions effective is nerves. People are more likely to give tells in person. You can see if someone is hiding something or holding something back.”
Valerie Field, the litigation director for Anishinabe Legal Services in Cass Lake, has mixed feelings about remote court. Her organization provides civil services in tribal and state courts, mostly (but not exclusively) to members of the White Earth, Leech Lake, and Red Lake bands of Ojibwe. Many of her clients have spotty or no access to the internet. The tribal courts have developed different pandemic protocols, with White Earth courts almost exclusively remote, Red Lake mostly in-person, and Leech Lake somewhere in the middle. For clients who have difficulty accessing the internet, according to Field, the courts have generally been accommodating, allowing parties to appear by telephone.
“I really like Zoom for the in-between stuff like pretrials and review hearings. If I have to argue a motion, I’m fine with Zoom,” says Field.
But in Field’s view, there are real drawbacks. She says it is frequently easier to settle a case in person, often right before a scheduled hearing or trial. In part, she theorizes, that’s because Zoom court doesn’t feel as real to some clients as physical court. And sometimes, she says, clients are more prone to disrupting virtual proceedings. “When you’re sitting next to a client, it’s easier to be reassuring. You can give the client a notepad and tell them to write down their thoughts. But if it’s a Zoom hearing and they are not in the same room, they panic and say things at inappropriate times or interrupt the other party.”
Seth Leventhal, a business litigator with a solo practice in Minneapolis, occasionally hears from fellow lawyers who grouse about remote court and yearn for a return to the pre-pandemic norms. “They like the off-the-record experience, both with opposing counsel and the court,” Leventhal observes. But even if Zoom court eliminates the informal chit-chat that many find enjoyable (and useful), in Leventhal’s view, the tradeoff is worth it. And it’s not just time that is wasted by in-person court. Recently, Leventhal traveled to federal court in St. Paul for a 35-minute motion-to-compel hearing. The inconvenience to opposing counsel was considerably worse, with lawyers flying in from California, New York, and Louisiana. That 35-minute hearing had an immense carbon footprint.
The view from the bench
As the chief judge of the Ninth Judicial District, Tamara Yon presides over the largest district in Minnesota, one that sprawls over 17 counties in the northwest quadrant of the state. When covid hit, that proved to be an advantage because the district had experience using a remote court technology, ITV. “With our smaller population and big geography, it sometimes made sense to have a witness or a party appear by ITV, so many of our judges were already used to that,” says Yon. Still, she adds, “Nobody could have imagined the way we are using remote technology now.”
One of the first things that Yon noticed with the switch to remote court: There was less absenteeism, especially in child support cases but also in a variety of other case types in which one of the parties didn’t have a valid driver’s license or transportation. Over the course of the pandemic, Yon observed something else. Lawyers, judges, and others have become more adept at using remote technologies. She has yet to experience a cat filter mishap.
For the most part, in Yon’s view, litigants and attorneys seem to prefer Zoom court, while opinions among her fellow judges are more varied. “Many of my colleagues really miss the in-person interaction you get in the courtroom, to speak to people face-to-face. I think there’s a real grieving process,” Yon notes. “On the flipside, I’ve had three judges who started after covid hit, so this is all they know. We all have different points of view.”
Tenth District Court Judge Krista Martin, who has been on the bench for 21 years, agrees with that assessment. “It’s across the spectrum. I know there are judges who would like to return to the way things used to be and certainly there are judges who are very comfortable doing things remotely,” Martin says.
Martin regards Zoom court as neither inherently worse nor better than physical court—just different. Consider the issue of courtroom decorum. “There are plenty of anecdotes about the crazy stuff that happens in Zoom court. But I have a lot of stories about the crazy stuff that happened in the courtroom,” she notes. “People do disruptive things.”
If a party shows up at a courthouse hearing wearing a hat, the bailiff handles that. If a party shows up shirtless or smoking a cigarette on Zoom, Martin says, she disables the video feed and makes her expectations clear. In general, she says, people are cooperative when given instructions.
The advent of Zoom court has also made it easier for rural judges to attract law clerks, who might live in the Twin Cities and not want to commute to Pine City or Mora, let alone International Falls. Rural courts can provide especially valuable experience for young lawyers, Martin says, because they tend to handle a great diversity of case types in a single day.
But there is one aspect of Zoom court that Martin has not grown entirely accustomed to. “When lawyers are arguing a motion, it feels the same, except it seems like they are closer to me on the screen. I can see them better,” Martin says. “But I don’t like seeing my own face. Sometimes, I go, ‘Oh, my God, is that what my hair looks like?’”
Up on the North Shore, Judge Michael Cuzzo, who is chambered in Two Harbors, says he expects the protocols for remote court will change over time. “This is a testing process that we are going to refine,” he says. “I’m not sure what those changes are going to be.” But Cuzzo, like Yon and Martin, is certain that Zoom court is here to stay, one way or another. There are simply too many benefits to the core users of the courts to go back. “Some judges want everything remote, some want everything in person. But the vast majority understand the reason we made the transition,” Cuzzo says.
A toll on lawyers?
For some lawyers, the shift to remote court (and remote office work) has been great. The scheduling flexibility, the ability to work from home, and increased efficiency can lead to better work-life balance. The tradeoff is—or can be—greater isolation. “More lawyers are introverts than extroverts. We do a lot of our work alone. For someone who is an introvert, it’s like, ‘Bring it on.’ But this is challenging for people who are energized by human contact,” notes Joan Bibelhausen, the executive director of Lawyers Concerned for Lawyers, a nonprofit that provides support services to lawyers, law students, and others in the profession who struggle with substance abuse and mental health problems.
For some younger lawyers, the loss of mentors is another issue. But Bibelhausen says she’s heard anecdotes about older lawyers who, rather than adapt to the remote protocols, have decided to give up the practice.
Bibelhausen points out that in-person interactions affect the brain. A handshake leads to the release of oxytocin, the so-called trust hormone associated with greater levels of happiness. Absent those positive interactions, some lawyers, like many others in society, have taken to self-medicating.
“We see different drinking behavior. More people are drinking during work hours,” says Bibelhausen. “We’ve worked with some employers who are concerned that people who are working remotely might be under the influence. But how do you ask somebody if there is an issue if you’re not present with them? It’s harder to reach out when your whole interaction is over a screen.”
Support groups like AA offer virtual meetings and, Bibelhausen says, that can work. But for lawyers struggling with addiction, it’s not always enough, especially for those who are emerging from in-patient programs. “We’ve had some people who had a recurrence as soon as they got out of treatment because that support wasn’t there,” she notes.
The impacts of the profession’s increased reliance on screen time are not spread equally. For women lawyers, who face more scrutiny over their physical appearance, all those hours spent on Zoom can take a toll. “With the close-up face on the screen, you feel more vulnerable and that can be uncomfortable,” says Bibelhausen. She advises people with such concerns about some simple tactics to minimize the impacts, including moving the camera farther away and blurring the background.
The biggest change Bibelhausen has noticed regarding mental health in the profession: an overall increase in anxiety levels. Since 2019, Lawyers Concerned for Lawyers has seen about a 10 percent uptick in the number of people seeking help for anxiety compared to the 2019 numbers. Some of that stems from what Bibelhausen refers to as vicarious trauma that is absorbed via clients and, often, goes unrecognized. “People are kind of flailing. There’s a concept called languishing. It’s not depression but it’s not thriving,” she adds. “We’re experiencing a lot more grief in our society.”
It’s not that there aren’t silver linings. Bibelhausen says it’s never been easier to ask for help and the stigma attached to such outreach seems to be receding, especially among younger people. That phenomenon confounds easy analysis: Are lawyers today really more troubled than they were before the pandemic? Or is it that more lawyers are willing to talk about their struggles?
It’s hard to know. But Bibelhausen says Lawyers Concerned for Lawyers is looking at ways to grow its outreach. Last year, the organization expanded its offerings to include up to four free counseling sessions and, for the first time, is now providing services to nonlawyers who work in the legal field, including paralegals and secretaries.
A legal scholar looks to the future
Peter Knapp, a longtime professor at Mitchell Hamline School of Law, is bullish on the future of Zoom court. One reason: how well law students seem to be adapting to this new digital reality. In the second-year advocacy class he teaches, students learn how to do direct examination and cross examination. “When covid hit, we moved from doing those all live in classrooms to doing it all remote via Zoom,” Knapp says. “We were surprised by how well students did in this new format. By and large, people are good at adapting when they have to.”
Although Mitchell Hamline doesn’t have any curricula specifically focused on Zoom court, students get a practical education in the use of the technology both through classes like Knapp’s advocacy course and real-world experience in the school’s various clinical programs.
Still, Knapp acknowledges that there are hurdles with remote advocacy. If the lawyer and client aren’t in the same room, he notes, they still need to be able to communicate privately. And he says scholars and policy makers will need to closely track the ways in which remote court produces different outcomes than in-person court.
Will judges set higher bail for defendants who appear remotely than for those who appear in person? That was the finding of a study in Cook County, Illinois, where, for nearly a decade in the early 2000s, most bail hearings were conducted via closed circuit television.
“Anyone who has participated in Zoom meetings knows there is a warmth of contact that gets lost,” says Knapp. “It’s hard to predict how that plays out in the justice system. We don’t want the system to become colder simply because it’s done remotely.”
Knapp expects the court system will continue to experiment and evaluate but, in the end, that there will be an increased tolerance for remote proceedings. And there will be some resistance along the way. “Every profession I have contact with—from the ministry to medicine to teaching—I’ve run into people who say this is a transition that I don’t think I can make. What I’m losing is too great. For some folks, that’s going to be the case for changes in the judicial system,” Knapp adds.
That said, Knapp predicts that the Minnesota courts will ultimately move further into the digital future, with bench trials and some civil jury trials conducted in a remote or hybrid setting. In the criminal realm, Knapp sees a future where some defendants might waive their right to confrontation and the proceedings will be virtual.
In Knapp’s view, this increased reliance on remote technologies was inevitable, even absent the pandemic. “We made 10 years of change in 18 months, but I think we would have gotten there sooner or later,” he says, adding with a laugh: “I wish I bought stock in Zoom.”
Mike Mosedale is a freelance reporter based in Minneapolis. Previously he worked as a staff reporter for Minnesota Lawyer, City Pages, and several other newspapers.