As most state courts remain closed to the general public, concerns about orderly dispensation of justice abound. The courts have undergone a decade’s worth of changes in just three weeks. Most of the credit has so far gone to the COVID-related administrative orders, the historic Supreme Court arguments by telephone, and shirtless lawyers from Florida video hearings. However, one state has so far emerged as a beacon of efficiency, transparence, and relative ease when it comes to the online courtrooms. The surprising winner is Texas.
First, the state courts have quickly developed and implemented fairly detailed rules applicable to electronic hearings. These are readily accessible on the courts’ main page and on the sub-pages of the various districts and other courts. Trial judges have taken an active role in drafting or adopting their own procedures aimed at easing the process. For example, most accept pre-hearing exhibits by email. The emails are listed clearly in the rules together with contact details of the coordinators. The hearing notices list Zoom call-in details.
Second, the courts have developed and posted conspicuously (an important feature) Zoom training manuals and guides for judges and litigants. These manuals are specifically aimed for litigation use. Further, the judges have quickly undergone rigorous training. Thus, the judges can and do guide the attorneys and litigants through the technical minutiae with ease. For example, the judges navigate Zoom breakout rooms (used, for instance, to create a sidebar with counsel) with great ease. The judges also collaborate, formally and informally, to take advantage of the positive and negative experiences of others. Apparently, you can teach an old (nay, seasoned) dog new tricks.
Finally, the state judiciary has taken the necessary openness of the legal process quite seriously. Thus, each courtroom has implemented a live YouTube feed, which is turned on manually during the hearings. The public has a right to know in Texas. A listing of the court streams together with an indication of whether or not a particular courtroom is “live” is available on the court’s main page: http://streams.txcourts.gov/ For those who find C-SPAN a bit too lively, hundreds of live feeds from the Texas courts are now available daily.
It is no surprise that Texas has recently made headlines as the first state to conduct jury selection online. Most, of course, emphasized the humorous detail that one juror took a call during the process. However, the event is a monumental achievement for the system that made a leap from the technological Stone Age in a month.
Hopefully, other jurisdictions will take advantage of the Texas model. There is no need to reinvent the proverbial wheel, especially where timing remains of the essence.
An old fable cautions to be careful what one wishes for. Such is the case for DoorDash. The company now has to pay $12 million in filing fees alone, to resolve the 6,000 arbitration claims by its drivers, who argue they were misclassified as contractors, but were rather employees. For a start-up that is still burning through cash, the expense is more than painful. The employee bar is amused; the employer bar concerned. However, there is another lesson here, one that involves online dispute resolution.
For decades employers have insisted that their employees or quasi-employee contractors (think Uber drivers) sign individual arbitration clauses. As a result, an employee wouldn’t be able to go to court or to participate in a class action. Instead, he must resort to a private arbitration administered by a private company. The idea of arbitration is having a neutral third-party resolve a dispute in the same judicial manner, but without the usual formalities, expenses, and length of the judicial process. The critics point out that the arbitration companies, which are private, depend on employers, who pay the costs, as repeat customers. At the very least, they argue that there is appearance of bias. The arbitrations are also confidential and usually lack the discovery process, making it more difficult for individual employees to uncover unlawful conduct. Or, as the employer advocates put it, these are the safeguards that discourage baseless claims and ensure simplicity and speed. The debate has, so far, been resolved in the employers’ favor; the courts routinely enforce such clauses.
The judge decided that DoorDash, which carefully designed the arbitration clause at issue, will not be heard to complain about its wishes being granted. This area of law will undoubtedly continue to develop as more courts are invited to weigh in.
Whatever the final outcome, the DoorDash cases present ready opportunities for online dispute resolution. The term “online dispute resolution” is extremely open-ended. A hearing conducted via Zoom is an example of online dispute resolution. But so is the Ebay process for automatically resolving the unpaid item disputes by ruling in favor of the buyer on all first-time offenses. In other words, any online tool that helps resolving a dispute is a part of the so-called online dispute resolution process. With that in mind, let us explore two examples using DoorDash as a hypothetical.
First, online process is uniquely suited to resolving small claims. The number of claims and the history of the DoorDash dispute indicate that most of the claims at issue probably fall below the threshold. FairClaims, the company I’ve had the honor of working with as an arbitrator on over 70 matters, presents a good case study. The process is, indeed, fast, and mimics a small claims hearing in court. There are also vast improvements. The administrative portion is easy and mostly automated. The parties submit their evidence through an online platform, which is highly intuitive. The scheduling is performed online through a built-in calendar tool. The hearing can take place via telephone or video. It is worth noting that unlike most regular small claims hearings, which take 15 minutes or less, the hearings via the online process is at least 30 minutes long. The entire process takes approximately 30 days or less. No travel is involved. A hearing can take place outside of the regular business hours, which are inconvenient for most parties. Finally, the filing fee is substantially lower than that charged by the traditional providers. In all, online dispute resolution is the clear winner in handling cases with lower value at a greater volume.
Second, from the companies’ perspective, employee claims of this nature present an obvious opportunity for automation or semi-automation in terms of risk-assessment, settlement, and formulating a defense. For instance, I represented employers defending claims for unpaid overtime, vacations, wages, and all sorts of other employee compensation. In most cases, once the companies dug into their records, the amounts at issue were fairly trivial. Understanding the claims led to speedier resolution, through settlement, summary judgment, or simply accepting liability for a $500 claim, rather than spending infinitely larger amounts in defense.
In the DoorDash case, plaintiffs are likely to ask for compensation tied to the trips they performed. For example, they may claim that DoorDash didn’t pay the minimum wage for the services provided under the local laws. Or, perhaps, the plaintiffs could claim overtime rates. Or paid sick leave and similar compensation. The plaintiffs are frequently unaware of the true extent of their damages and claim the need to rely on the employer for the information. Online tools would make such information readily available.
The basics of the DoorDash operation are simple. A courier uses a phone to accept an order for delivery. The phone then directs them to the pick-up and drop-off locations via GPS. The entire trip is, of course, recorded. DoorDash can thus evaluate any claim simply by pulling up a driver’s delivery record, which would contain information about all the trips taken, the dates, the duration of the same, and all payments made to the driver. Based on that information, it is fairly easy to calculate a number of scenarios, such as whether the plaintiff received the minimum wage, what the difference was, and so on. This, in turn, would present an opportunity for intelligent claim assessment, meaningful mediation, and settlement. Given the speed of technology, these operations can be performed instantaneously. The company can then make an intelligent decision about the claims. It also benefits the claimants by providing them with a transparent and verifiable valuation of the claim. It might even turn out they were paid in full.
This area of the law practice is developing; the results will undoubtedly surprise us. Stay tuned.
Legal technologists rejoice: video courts are coming to the courthouse next to you. After years of lamenting the lack of need, funding, knowledge, and training, state courts are embracing online dispute resolution (ODR). Service by email is now required. And most matters will be heard via video and telephone conferences.
Lawyers’ aversion to novelty has been well documented. When I started my practice in the not-so-distant early 2000s, I was a bit of a trailblazer. This is because I typed my own letters and used email. Other lawyers spoke into Dictaphones and had their secretaries transcribe. Still, lawyers are unfairly criticized for not buying into things designed to hurt their bottom line. More on this in a separate post.
So, what’s news? A great challenge has turned into a great opportunity. To their great credit, the courts of the Commonwealth responded promptly to the crisis. I have been receiving daily updates from the Supreme Judicial Court, the Trial Court and its various departments. The courts have quickly closed for in-person visits and rightly so. To manage the caseload, they have also mobilized and have endorsed a variety of technological tools, which will, hopefully, become permanent.
First, the SJC has mandated the use of email to serve papers. For those practicing in Federal Courts, this has long been the standard. The online PACER system has long made filing and service a breeze. However, for those in the State Court trenches, printing and mailing has remained a reality. A statewide system efilema.com is under way, but it is not yet fully functional. Finally, the new SJC standing order (https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-order-concerning-email-service-in-cases-under) requires that all papers be served on attorneys via email (where email is known and the matter is non-criminal). Some may know that the Superior Court Rule 9A(b)(iii) allows the parties to agree on service by email, but now it is uniform and mandatory. Moreover, the clerk’s offices are now allowed to accept electronic documents and affidavits signed electronically or via facsimile. Given that most documents are nowadays signed in this fashion, this is all very sensible and makes running a paperless office so much easier.
Second, most, if not all, hearings are to take place via video and telephone conferencing. See SJC Standing Order (https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-order-regarding-court-operations-under-the)), Superior Court Standing Order (https://www.mass.gov/superior-court-rules/superior-court-standing-order-4-20-superior-court-operations-during-the). Again, the courts previously instituted a pilot program allowing for video hearings for incarcerated persons in some cases. The program was largely successful.There were some logistical concerns, for instance, about access to the counsel during the hearing. Now, theoretically, any hearing can and should take place remotely. The concerns for public health outweigh all others.
One of the more interesting features of the SJC Order is that while all trials are deemed postponed, the parties can opt-in to conduct theirs remotely, i.e., via video or telephone conference. I salute the brave counsel who will be first to take advantage of the opportunity. Let me allay their potential concerns here.
For example, I hear that attorneys are worried that seeing someone on video would be detrimental to making credibility determinations. These, they would tell me, are best made in person. After all, would you want to hear an opera at LaScala or on TV? Science, however, trumps intuition here. There is plenty of research that tells us we are fairly easy to lie to. For instance, there is a tendency to overvalue confidence or favor those who look like us. There are plenty of other biases. Also, juries are routinely shown video depositions in lieu of live testimony. And, in any event, it is possible to test these assumptions later, when we can all finally get out of our homes.
Another critique is that people wouldn’t feel they’ve gotten their moneys worth or won’t take the process seriously if they’re not in the courtroom. My personal experience has been the opposite. For some time now, I have served as an arbitrator for FairClaims, an online arbitration service focused on matters valued at up to $25,000. I have conducted dozens of matters via video conferencing. The parties submit their documents via a simple online system before the hearing and, if necessary, right after. I have had no trouble identifying which party has a tendency to overstate its case. Spoiler alert, usually both parties have slightly skewed views of their causes. In terms of customer feedback, after having resolved thousands of cases, the company reports a very high level of satisfaction, which translates into a high level of satisfied awards. Remote access provides the convenience, but it also translates into greater efficiency in resolving the matter.
Most lawyers who practice in our state courts know that the hearings are held on a particular day and everyone is scheduled to come at the same time. This, of course, means that parties are required to wait, sometimes for hours, until they are reached. This creates the obvious inefficiency and additional legal fees. With online hearings, such a practice can be virtually eliminated as the parties can remain on call while attending to other matters.
It is not yet entirely clear what resources have been allocated to the initiative. Hopefully, our state legislators are in the process of funding the immediate needs. In other states, such as Florida, for instance, the courts secured a separate appropriation to buy video conferencing equipment and licenses. There is a reported case in Russia where a hearing was conducted via a free telephone chat app, WhatsApp. Hopefully, we will not have to resort to such measures.
I welcome feedback from practitioners. If you have recently conducted a video hearing or are looking at a video trial, I’d love to hear from you.