Saving remote appearance from itself

The benefits of remote appearance in court are obvious and significant. Born in the pandemic, widespread video remote appearance has persisted because it is so valuable. Like the transporter in Star Trek, it allows litigants, parties and even occasionally judges to “appear” instantaneously without the time, burden, and wear and tear of travel. And it increases access to justice, by reducing the cost of litigation, and by facilitating appearance for those who have trouble getting to court.

Our court was an early and enthusiastic supporter of remote appearance, and it allowed us to minimize COVID backlogs and keep the wheels of justice turning. But from our experience with countless remote hearings, we see three problems.

First, video technology can be glitchy. The professionals – courts, lawyers, and public agencies – should invest in technology and training to ensure they have top-notch, reliable infrastructure for remote appearance. And pro per litigants who want to appear remotely should do their best to get good connections too.

Second, remote technology can make it harder for court reporters to maintain a good record. This is a problem, but it’s solvable. Judges need to do their part to ensure a good record, by insisting on communication that is properly-paced, clear, and fully intelligible to all participants.

The third problem is the most difficult: erosion of court decorum.

There is no inherent reason why remote appearance should be more casual and less decorous than physical appearance. But experience teaches us that remote appearance does encourage an inappropriate casualness. We have had litigants (and occasionally counsel!) appear with distressing informality: enjoying an apple during the hearing, lounging on a couch, inappropriately (or barely) dressed, dozing, etc. Any trial judge who has handled cases remotely can no doubt add to this list.

So what’s the solution? Should we abandon remote appearance to preserve the necessary dignity of the court?

Decorum and formality are critical to court proceedings. As President Andrew Jackson famously reminded Chief Justice John Marshall, courts have no army to enforce their orders, and so we are dependent on broad public acceptance of court decisions. The solemnity of court proceedings is necessary to preserve that acceptance – that’s the main reason courthouses are built in a more imposing and grand style than regular office buildings. If court hearings become like just another Zoom meeting, something important is lost, and that something is respect.

So should courts abandon remote appearance? No, instead judges should enforce the rules of decorum with the same vigor as they do when proceedings are held in person.

You can’t eat an apple in physical court, and shouldn’t eat one in remote court. You can’t slouch all over the table in physical court, and you shouldn’t be able to do so in remote proceedings either. Technology changes many things, but it shouldn’t change how people behave in court.

Anyone breaking the rules of court decorum should be asked to leave the virtual courtroom, and return once the problem has been fixed. Even relatively minor breaches should be corrected. For instance, the dress code for remote appearance should be identical to the dress code for in-person appearance. If we want remote appearance to be as dignified as traditional court, we must insist on the same rules.

Critics of remote appearance are right to point to the erosion of decorum in remote proceedings. But the answer is for judges and counsel to insist on courtroom-quality decorum, not to abandon the technology and all its benefits.