July 2021 Bar Bulletin
By Alisa Brodkowitz, Esq
Recently a Federal Judge compared Zoom court to church in a supermarket, opining that remote proceedings cheapen trials. His voice is joined by other jurists who, with U.S. COVID numbers decreasing, call for a return to in-person trials and a departure from dispensing justice online via Zoom, as we have done during the pandemic. Those lawyers and judges decry any move away from the majesty of the physical courthouse. They argue that the solemnity and gravitas of a court room transforms those who enter it into respectful professionals and citizens, and they complain about security and the limitations of Zoom. But this perspective is short sighted and out of touch with an entire population of people who never experience the luxury of having justice delivered to them inside a courthouse. References to attorney Abraham Lincoln ignore his legacy of bringing justice to people where they lived as part of a traveling court.
From 1837 until the time of his Presidency in 1861, twice yearly, attorney Abraham Lincoln rode the entire Eighth Circuit of rural Illinois. Traveling on his horse, Old Tom, riding circuit took nearly three months over four hundred miles. His riding party included a judge and attorneys. By day they endured all types of weather and terrain. At night they stayed at inns or taverns. Each spring and fall, court was held in consecutive weeks in each of the fourteen counties, a week or less in each. Those traveling courts tried all different types of civil and criminal cases. Most of the lawyers rode only a portion of the circuit; Lincoln was one of the few who made the entire tour without interruption.
For the circuit riders like Lincoln, court was not a place but a service to be delivered. People waited for the week when court would come to them. This framework originated in medieval England with King Henry II who is credited with creating the original traveling courts. Judges of the realm went on regular journeys throughout the country bringing the King’s justice to every citizen. Their aim was to create a common system of law throughout the land, which became (in)famous subsequently as the common law.
COVID has reminded us that court is not a place, but a service that can be delivered to people in their homes, something we had forgotten since the time of circuit riding. A virus with deadly consequences has plunged parties, attorneys, and judges into an online justice pilot project successfully challenging attitudes about remote testimony and juries. We are indeed at a crossroads, but we must tackle the difficult terrain and ride the computer circuit.
Instead of empty talk about access to justice, we have an unexpected opportunity to create greater access, online access, to dispute resolution. The expense and delay of our legal system deter many potential litigants from even attempting to seek help from it. Addressing civil cases, Erika Rickard at the Pew Charitable Trust writes: “[e]ach year, more than 30 million Americans encounter civil legal problems without the help of a lawyer. Many of the issues these individuals face, such as debt collection, eviction, foreclosure, child custody, bankruptcy, and disability claims, can have profound, even life-changing, implications.”
To serve the actual needs of society in a meaningful way, the legal system must become more efficient and affordable. With online justice it can. Insisting on the physical presence of people in an imposing courthouse puts form over substance and assumes that our pre-COVID justice system was working just fine. It was not. Individuals with lives hanging in the balance waited years for orders and hearings that should have taken months. If witnesses were located out of state or out of the country, jurisdiction and subpoena power denied juries the opportunity to hear verdict-altering evidence. That too can change with remote trials and new concepts and rules for online jurisdiction and subpoena power.
I agree with the Zoom trial proponents that we must improve the technical system and tools that we use to stream cases to remote juries. I agree that we must insist on the highest level of security for court proceedings. Zoom “bombings” of hearings or trials are preventable, but that is simply akin to increasing courthouse security. Concerns about an attentive online jury are legitimate and are being addressed by each of us along with technology.
Lawyers presenting online trials are carefully tailoring their cases with engaging visuals to keep the jury’s attention. Legal technologists like myself include features in our products that show when a juror or witness has another window open on their computer. And what we are seeing with online juries is remarkable. A Seattle jury consulting company looked at the demographic data from King County comparing samples of jurors from remote juries to pre-COVID in-person juries and found that remote juries increased both racial and generational diversity.
As attorneys, as judges, and as innovators, we have our work cut out for us. But if we genuinely care about diverse juries and efficient open justice, we have no choice but to embrace remote court capabilities. Surely it cannot be more difficult than riding four hundred miles by horseback.
Alisa Brodkowitz is the founder of Lightning Law Technologies, Inc. a Seattle based startup building online justice tools for attorneys and mediators. She spent twenty years litigating cases on behalf of plane crash victims nationally and internationally. She is also an avid horseback rider. Connect with her at https://www.linkedin.com/in/alisalightninglaw2020/.