From Low Tech to High Tech: How the Evolution of Technology Can Help the Court System
The year was 1997 and I was a newly minted attorney. Growing up, like so many others, I watched legal dramas like “L.A. Law” and “Law & Order,” depicting the courtroom as fast-paced and drama-filled. I imagined in court I would see tempers flare, lawyers hauled off to jail at the drop of a hat for contempt and last-minute witnesses rushing in to save the day for the accused.
So, imagine if you will, my surprise when I found the opposite to be true. I often found myself sitting and waiting, having nothing but my imagination to pass the time until my case was called. Surely, I could review my files but as the minutes turned into hours, re-reading the same paperwork repeatedly was not going to make me any more prepared. I had no way of getting a hold of wayward clients except to run back to my office and use a landline or if I was lucky, find a pay phone nearby. Of course, it also required my client to be near a phone. Later, as a young prosecutor, I was assigned a pager so the court could contact me when the jury reached a verdict; otherwise, I was tethered to the courtroom or my desk.
While in law school on the East Coast, I followed the trial of O.J. Simpson for the murders of Nicole Simpson and Ronald Goldman. During the first semester of my 2L year, televisions were wheeled into the classrooms so we could watch as the verdict was read. The notion that information was so readily available was in its early infancy and not in the zeitgeist at the time of the verdict.
There are two camps of people reading this article: people who grew up before widespread use of the Internet and people who grew up mostly after. For those of us that find ourselves in the first group, we have watched as advances in technology have unfolded before our very eyes. We went from rotary phones to push button to cordless to huge cellular phones (think Michael Douglas in Wall Street) to phones (some might say, computers) that fit in our pockets. I used to take exhibits to Kinko’s to be enlarged and mounted, then placed them on an easel for the jury to see. Nowadays, exhibits are projected onto a screen right in the courtroom. Courts across California have received large amounts of money to invest in updating technology with flat-screen televisions mounted on the wall facing the jury box, small screens mounted on the witness stand to view exhibits, and a multitude of devices available for counsel to display documents, video and audio during trial. No more easels, low resolution projectors where the bulb may not work, and spending 30 minutes while the jury is waiting to get everything centered on the pull-up screen.
Despite these advances, as the pandemic gripped the world and courts were confronted with new challenges to continue serving the public, there was a time when cases across California came to a grinding halt. Contra Costa County was the first courthouse to shut down, and others shortly followed our lead. Getting courts to a place where we could operate remotely was no easy task. While it may seem that all it should take is a Zoom account, a microphone and a court reporter, it was far more complicated. In the criminal branch, for example, in addition to statutory and constitutional deadlines, there was the additional challenge of a defendant’s Sixth Amendment right to confront and cross-examine a witness. Did a remote hearing, even one on camera comply with the Constitution? How would discovery be exchanged? Would a bench officer be able to assess the credibility of a witness remotely? Even though the Bay Area has many tech companies, many of the litigants and their attorneys found using video conferencing platforms to be vexing and unfamiliar.
Over time, however, the bumps were smoothed out and the value of remote appearances began to emerge. In family court proceedings, for example, remote hearings could reduce tense, in-person conflicts and arguing in the hallway. Before ‘Zoom,’ although hearings might only last 15 minutes, there was waiting time; travel time; time off work; and the frequent necessity to make childcare arrangements, or to cancel doctor appointments. For parties coming from other cities, say Stockton or Sacramento, more time would be spent in the car than in the courtroom. Utilizing remote hearings resulted in ameliorating a lot of those issues. Moreover, by allowing appearances on Zoom, the show-up rate increased dramatically, resulting in cases moving along toward a resolution. With the greater number of appearances, courts have been able to clear backlogs, helping to keep our courts running more efficiently. Attorneys were no longer at the mercy of traffic but now could make multiple appearances from their office or home, thereby increasing their productivity.
The point is that remote hearings should not just be for pandemics. Allowing online court not only cuts down on absenteeism but serves to encourage parties to appear because it sends the message that the courts recognize that a party’s time is valuable and provides access to justice. Remote hearings have made the courtrooms more visible and accessible to the public at large. Some may be here to stay.
Like anything else, however, technology should still have its limits. A huge part of a court case is the human element. There is a danger of over-reliance on technology in that we can lose the humanity of the process, the pathos and ethos which are a part of each case. While the pandemic has taught us the importance of technology in the courtroom, we have also learned the dangers of social isolation. Interacting with one another, both in and outside of the courtroom, is important for our health as a community and in our justice system. We need to find a balance because one day, this pandemic will be in our rearview mirror but how to best balance the needs of our community while providing access to justice will remain. In the meantime, we will move further away from paper files to digital files, and e-discovery and court documents will be available in an instant. Yet in the end, technology will never be able to replace the humans who make up our justice system, even if they arrive to court in a car set to auto pilot, or choose to appear remotely from down the street or another state.