Streaming of US court cases should continue, some say

The judiciary is historically slow to embrace technological change. The best evidence for this is that a Fax machine is still a required piece of equipment in every law firm, lest the firm face a malpractice lawsuit for missing an important judicial Fax. However, as a result of COVID-19, courts were forced to revolutionize the way they operated.

One of the biggest technological changes to the judiciary, particularly the federal judiciary, has been the livestreaming of cases. Most U.S. district courts were prohibited from livestreaming cases until March 31, 2020. On that day, the Administrative Office of the U.S. Courts issued guidance that enabled circuit, district and bankruptcy courts to livestream their cases. This was followed by additional guidance on April 2, permitting electronic access to most criminal proceedings. As a result, and in the span of a week, (at least temporarily) universal acceptance of livestreaming of district court cases became a reality.

"This pandemic is not the disruption that any of us wanted, but it might be the disruption we needed to transfer our judiciary into a more accessible, transparent, efficient and customer friendly branch of government," Michigan Chief Justice Bridget Mary McCormack testified to Congress last year.

A principal benefit of livestreaming of cases is increased access to the courts. From clients unable to miss work to attend pretrial hearings, to members of a class action, to young associates who worked on a brief but are too junior to leave the office, interested parties who would otherwise not be able to attend hearings are, for the first time, able to stream court proceedings.

"From the associate perspective, I've been able to attend more hearings than I otherwise would have, which is a great learning experience," said Alyssa Shauer, an associate in Sheppard Mullin's Business Trial Practice Group. "It provides benefits to the case too, because there are some things in the weeds that I can provide notes on and it's great for teamwork. ... I hope it stays." By extinguishing travel requirements and costs, livestreaming also has the potential to lower costs and improve attorneys' work-life balance. According to U.S. District Judge James Donato of the Northern District of California: "I see genuine enthusiasm. I really do. [The lawyers] did not have to get on a plane and leave their practice to see me for 45 minutes. I've never seen anyone complain."

"Without this pandemic we would never have had the necessity of doing [virtual appearances]. Or the acceptance of the bar to these procedures. So if there is a bright side of this pandemic, it is that," Judge Kirk H. Nakamura of Orange County Superior Court said in a recent Daily Journal webinar on the topic.

One particular impediment to universal acceptance of livestreaming cases is the digital divide. According to a 2019 study by the Federal Communications Commission, roughly 21.3 million Americans lack access to broadband, while rural and less affluent counties generally have poorer internet than their urban, more affluent neighbors. However, retired U.S. Judge Jeremy Fogel of the Berkeley Judicial Institute, sees issues like these as a check on livestreaming, rather than a reason to abandon ship.

"The main check is procedural fairness -- that they are having an opportunity to be heard by a judge or jury. If someone objects, then of course they ought to have the ability to appear in person," Fogel said in an interview.

Another concern is determining which cases should be categorically excluded from livestreaming, either on constitutional or logistical grounds. Criminal cases, complex civil trials and some or all jury trials are among the types of cases that legal scholars and judges agree deserve extra attention. "Civil motions are a no-brainer because you don't have the same appearance requirements and they are moving along quite regularly," Nakamura said.

Status conferences, case management conferences and routine discovery disputes have all been cited as examples of federal hearings well-suited for virtual appearances. And triaging cases through these pretrial hearings has the potential to decrease the growing judicial backlog, according to Fogel. "I would really encourage courts to set up a task force to triage the cases. ... They are not the same cases from a year ago. ... A year has gone by and the incentives may be different."

This is not the first time the district courts have experimented with cameras. From 2011 to 2015, the Judicial Conference of the United States installed cameras in 14 courtrooms as part of a pilot program. Afterward, the Federal Judicial Center's report indicated that more than 70 % of participating judges and attorneys favored recording court proceedings.

Currently, while there is no legislation or enacted plan in place to extend the exceptions that have allowed district courts to livestream cases, there have been at least three bills put forward to address the issue, including the "Court Access Amid the Pandemic Act," which would require livestreaming of district court cases.

As Donato put it: "Is it great to be in the same room as someone? Of course. But we can still get great work done today."

Ilan Isaacs leads the Daily Journal's virtual conference team.