October 2021 Bar Bulletin
By Alisa Brodkowitz, Esq.
Okay, so there is this experiment, and it involves five monkeys in a cage. A researcher puts a ladder in a cage and hangs a bunch of bananas at the top of the ladder from a string. When the first of the five monkeys starts to climb the ladder to get the bananas the researcher sprays all five monkeys with freezing cold water for five minutes. A little while later the second monkey starts climbing the ladder and again the researcher sprays all five monkeys with ice cold water. After a while a third monkey begins climbing the ladder, but the other monkeys attack him to prevent him from going up the ladder.
The researcher then switches out one of the monkeys. The new monkey tries to get the bananas and is attacked by the others. One by one the researcher replaces each of the monkeys until none of the original five monkeys is in the cage. Each time a newcomer goes for the bananas, the others attack, even when they, as new monkeys, have never been sprayed with cold water. These monkeys do not know why they are doing what they are doing, but they just keep doing it.
Sometimes, it feels like lawyers and judges are kind of like the monkeys in this experiment. It takes a monkey to start asking “why?” Lately I see this playing out in issues of jurisdiction and online justice.
Access to justice, due process, and jurisdiction are intertwined concepts. Whether a court can act, who can be compelled to testify, what the jury will hear, whether you can appear in court online, these are essential elements of access to justice. With trials, hearings, and depositions moving online, we are still restricted by geographic limits on the place for compliance with subpoenas for remote proceedings. Why?
Since 2013 when Federal Rule of Civil Procedure 45 was amended, a subpoena could only compel a person to attend a hearing, trial, or a deposition within 100 miles of the location where the subpoenaed person lives, works, or does business. Washington’s Civil Rule 45 (and RCW § 5.56.010) narrow the radius to 40 miles for deposition and 20 miles from the court for trial.
With our current technological capability to beam testimony thousands of miles why are we following these rules? When someone testifies online where are they testifying from? Does it matter how many miles away from the courthouse they are located? If the trial is online or “virtual,” where is the courthouse located? where the judge is physically sitting or do we measure distance from the court’s server or the juror closest to the witness? Should remote judges and jurors be permitted to participate in trials if they are also located outside of these geographic boundaries?
The limits of the jurisdiction of the courts are part and parcel of due process. Due process is, simply put, the fair treatment of citizens through our judicial process. Service of process, as an example of due process, means that you get notified in a fair way. With citizens working and socializing online, what we think of as fair is changing, and necessarily so.
As technological advancements in communication and commerce have changed so have concepts of jurisdiction. The US Supreme Court once required personal physical presence in a forum to find jurisdiction. Then as our world became smaller with global commerce, this requirement adapted too. Now we must find enough contacts within the forum State so that it is reasonable to require someone to be hailed into court there.1 Despite this, our geographical rules about testimony and subpoena power persist.
Service of process, historically physically completed in person by passing actual hard copy paper documents to a human, has also evolved. When not possible in person, publication in a newspaper and certified mail was accepted as alternative service. In 2021 is the newspaper publication method still reasonably calculated to alert interested parties of the pendency of an action? At least one judge in New York thinks a newspaper notice is guaranteed NOT to let a defendant know they are being sued.2
In some places, we have entered the era of service of process by social media and email as an alternative means of service. Texas now allows a party to make a motion for service by “social media, email or other technology” where “other evidence shows [doing so] will be reasonably effective to give the defendant notice of the suit.”3 Alaska Rule of Civil Procedure 4(e)(3) also allows for service of process through social media and email after a diligent effort has been made to serve via certified mail or process server. We have yet to implement such a rule in Washington.
As we make technological legal leaps towards increased access of justice it is time to reconsider our civil rules in a new digital due process context. When we litigate online, the driving distance to the courthouse loses meaning. Physical or newspaper service of process especially during social distancing may not comport with due process. Restricting the testimony that a jury hears by the geographic location of a witness will soon be viewed as arcane. It is time to ask “why” and examine our civil rules through a digital lens, so we can move beyond beating up each other each time one of us reaches for the bananas.
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/.
1 Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021).
2 Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 715 (N.Y. Sup. Ct. 2015) (citing Snyder v. Alternate Energy Inc., 857 N.Y.S.2d 442 (N.Y. Civ. Ct. 2008)).
3 Texas Rules of Civil Procedure 106 and 108(a).