Even though the pandemic is finally over, and even though this is the last pandemic we’ll experience – and both seem pretty optimistic – it’s still worth studying and learning from the unprecedented adaptations we’ve seen in the system. American test do over the past two years. Faced with the sudden need to avoid crowds and contact, the great ship of American judicial practice was forced to execute a quick precision turn. Despite their generally conservative and tradition-bound nature, many courts have risen to this challenge, moving quickly to hold meetings, conferences, hearings, testimony, bench trials, appeals, jury selections and even full-fledged jury trial online. And for every annoying and unsatisfying experience in the Zoom space, there was also at least one complementary experience that proved surprisingly effective, if not more accessible and effective than its in-person counterpart.
As we will return to all of this some day, it is useful to learn from experience and assess which of these adaptations might become a useful part of our normal testing practice. There’s a new book I helped put together, and it does exactly that. Not to honk (but actually to release a full Coltrane solo), I’d like to talk a bit about this book. Entitled The Online Courtroom: Leveraging Remote Technology in Litigation (Gabriel & Broda-Bahm, eds., 2024) it is published by the American Bar Association’s Tort Trial and Insurance Practice Section, and is an edited project with consultant Richard Gabriel and built on contributions from the many distinguished members of the room Online Audience Project. If the computer screen and camera are likely to play a role in your future practice practice, this book should be on your shelf. In this article, I will preview some of the main themes of the text.
The purpose of the book is do not to encourage online trials, but rather to document the experience in many places and to provide a practical list of ways in which remote legal proceedings should be conducted most effectively. Here are some of the highlights in the pages:
- Richard Gabriel begins the book by laying out the story of the American justice system facing unexpected disruption and turning it into innovation.
- Judge (Retired) Gary Hastings shares the results of several interviews he conducted with judges and courtroom staff across the country, offering the perspective of the bench.
- Two Husch Blackwell attorneys, Lisa Oberg and Michael Sandgren, provide attorneys’ perspectives on the many practical challenges of building an online case, including managing technology, maintaining attention, and document processing.
- Consultant Alicia Aquino discusses changes to testimonials, including the removal of geo-limits, as well as the need for better document handling practices.
- Providing the perspective of the jury, I offer a chapter sharing the experiences of real and demonstration trials with jurors discussing the pros and cons in their own words.
- A team of consultants and testing technologists (Sarah Murray, Josh Splansky, Marc King and Ted Brooks) systematically examine all perceived issues regarding the technical feasibility of online testing, and the extent to which each was or was n was not realized.
- On the legal front, Tulane law professor Michael Shammas and Sheppard Mullin attorney Michael Pressman provide a detailed review of what we know so far about the legal legality of online disputes.
- Consultant Sarah Murray, with Marc King, discusses whether online panels can be as representative, or more representative, than their in-person counterparts.
- For anyone on future Zoom calls, and that means everyone in and out of the field of law, consultant Lisa DeCaro’s chapter on credible communication in this environment should be required reading.
- Hoping that Zoom and its rival companies are listening, the final appendix also provides our list of custom features that a courtroom version of online conferencing software should include.
- In addition, a number of authors have provided practical lists of best practices for other aspects of the trial process, including:
- Selection of the jury, and especially use of online questionnaires (by consultant Jeff Frederick)
- Arguments online before the bench (by Wheeler attorney Trigg O’Donnell, Theresa Wardon Benz)
- Technology Implementation (by consultants Josh Splansky, Ted Brooks, Alicia Aquino and Noah Wick)
- Witness and client meetings (by me)
- Jury management (by consultants Laura and Chris Dominic)
- Testimony (by attorney Jeffrey Kirschenbaum)
- Using Exhibits (by consultant Noah Wick)
- Providing Instructions (by retired judge Gary Hastings)
- Deliberations (by consultant Karen Lisko)
To answer your unspoken question, yes, we did all of this by filling the 349 pages of the book during the pandemic. Many authors have yet to meet in person. And these conditions remind us that this is a subject that is still evolving. It’s starting to become clear, for example, that online hearings are here to stay and remote testimony is likely to become much more common. But how many other pandemic adaptations could be used again or find their way into more normal court practice? It will likely depend on what we learn about our adaptability. On this, the online jury is still out.