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.