America’s courts are gradually making their way back from the restrictions imposed by the COVID-19 pandemic. A recent survey by the National Center for State Courts found that public faith in courts is steady, still at the 70 percent average of the past eight years, but that willingness to set foot in a court is a different matter.
For a majority, comfort with reporting to a courthouse in person or serving in person on a jury hovers around 5 on a scale of 10. Two out of three would be willing to appear remotely, up from two out of five in 2014. Given a choice, almost twice as many (44 percent) would prefer remote service to serving in person (23 percent).
One of the pioneers of moving judicial functions from physical to virtual is Emily Miskel, who as the administrative district judge for 21 courts in Collin County, Texas, is responsible for sorting out their administrative challenges. “Lucky me,” she laughs about finding herself in this role during a pandemic.
As it happens, Miskel has training, interests and skills that have served her courts well. A Harvard Law School graduate, she earned an undergraduate degree in mechanical engineering from Stanford. She is a member of the computer and technology council for the state bar and the author of a book on wiretapping. “I have focused on technology since I’ve been a lawyer,” she says. “When all this happened, I had the tech part lined up, and that made me brave enough to try things.”
Collin County, situated north of Dallas, might be just the seventh-largest county in Texas, but under Miskel it has emerged as a national leader in implementing technology to provide safe access to justice during a time of public-health restrictions.
Finding a Virtual Courtroom
Collin County saw its first COVID-19 case on March 9. That happened to be during public schools’ spring break, so court activity was comparatively light, making it slightly easier for the county to consider the best way forward.
District judges in the county each get about 2,100 new cases a year, says Miskel. “If you break that down, that means that every judge needs to resolve between nine and ten cases every single business day.” Court closures had the potential to put judges so far behind that they would never be able to catch up. Ramping up the courts’ use of video technology seemed the obvious way forward.
“We already had the capability to do video court appearances if there was a witness outside the country or something like that, but we hadn’t done a hearing where everyone was remote,” says Miskel. “We didn’t know what we would be able to accommodate.”
Miskel started by contacting the executive director of the Texas Office of Court Administration, David Slayton. “He loves technology, and he was really quick to help find resources for us to test,” she says. The team evaluated platforms including WebEx, Microsoft Teams, BlueJeans, Skype and Discord, eventually settling on Zoom. Within a week after the first Collin County COVID case, Slayton negotiated 500 Zoom licenses for judges around the state who wanted to explore how they might be able to use it.
The judges in Collin County decided to cancel anything that wasn’t an emergency, and to try to hear everything that was. “We didn’t want to delay such things as child welfare hearings, protective orders, cases involving family violence,” says Miskel. “We wanted those to be heard promptly, no matter what.”
The Texas Supreme Court gave the state’s lower courts the authority to compel people to appear remotely. With that order and other enabling ones in place and a platform available, Miskel and her colleagues began to address the details of conducting virtual proceedings.
A Virtual Hallway
Pre-pandemic, Miskel’s normal practice was to set 10 cases for a daily court period beginning at 9 a.m. It was typical for some to cancel the night before if parties settled their disputes, or for some to be settled in the hallway as other cases were being heard in the courtroom.
It wasn't clear how this kind of scheduling could translate to Zoom, so Miskel initially decided to set cases at four time slots during the day. That worked during the stages of the transition, but as operations picked back up and more cases were settled and canceled, Miskel adjusted the schedule accordingly, moving back to a 10-case docket.
The number of cases that could be heard wasn't the only issue. Miskel also needed to find a way to re-create virtually that environment in which scheduled cases are settled outside the courtroom. Zoom’s breakout room function proved to be the answer. The 10-case docket was broken into morning and afternoon sessions. Parties receive a meeting ID and check in with the court coordinator, who makes sure audio and video are working, adjusts screen names if needed and moves them into a separate breakout room for each case. “I sign on, go into the first breakout room and tell them I’m ready to call the case,” says Miskel. “I invite them to the main meeting window and we take care of things.”
Zoom’s one-button feature makes it easy to stream proceedings to YouTube, enabling the court to meet the requirement for proceedings to be public, and judges were assisted in creating YouTube channels for their courts.
Miskel notes that not all were technology natives, and calling on them to preside over a Zoom courtroom being broadcast to the internet was a big ask. “I didn’t believe any judge would do it,” she says, but that concern proved to be unfounded. “I’m so impressed that our judges have been brave enough to make such a big shift.”
After operating this way for several months, Miskel found she was able to handle nearly as many cases as before the pandemic, and each of the judges in Collins County has disposed of more than 800 cases during the pandemic timeframe. “I can’t imagine how I would even go forward if I had taken five months off and still had those 800 on top of my normal 2,100,” says Miskel.
Given that experience, she’s been asked to train judges in Texas and other states who want to conduct remote hearings, and believes those who have not adopted the practice face an uphill battle. But hearings and routine, non-jury cases are one thing. What about a jury trial?
The First Remote Trial
In mid-April, Slayton sent a text message to a group of Texas judges who had emerged as leaders with Zoom court, asking for their help in testing approaches to remote jury trials. “Immediately, people responded with reasons that it couldn’t work,” says Miskel. “They were legitimate concerns, but that didn’t solve the problem that we had.”
Miskel realized that her docket included a type of case that would be ideal as a starting point. In cases where a jury trial that could take weeks is requested, the court first requires an attempt to settle the case through an alternative dispute-resolution process known as a summary jury trial. This trial includes all aspects of a regular trial, including selection of jurors. “You put on an abbreviated one-day version of your case to the jurors, they deliberate and come to a verdict, and then you can talk to them about your case,” says Miskel.
The verdict is not binding, and the next day the parties go to mediation and attempt to settle the case, informed by what they learned from the events of the previous day and the response from the jury. If a settlement cannot be achieved, a full-scale trial is held.
It seemed to Miskel that such a proceeding would be ideal for testing a virtual jury trial, the nation’s first. “No. 1, the litigants were already expecting to go through the process, so it didn’t add cost or burden, and No. 2, it’s a non-binding process, so if the whole thing went down in flames, nobody would be hurt,” she says.
To prepare, Miskel reached out via Twitter and connected with about a dozen trial lawyers willing to log onto Zoom and workshop a trial with her. “We broke the trial down into every phase and talked through each one to make sure we were doing it in a way that would translate into the technological realm.”
Within a month of the email from Slayton, Miskel was ready, and on May 18 she presided over the nation’s first virtual jury trial. “We did every phase – we did voir dire with a panel of 30 jurors and picked 12,” says Miskel. “We did opening statements, testimony, closing statements and jury deliberations in a breakout room.”
The verdict of the summary jury trial is confidential, but Miskel can reveal that every task was completed successfully. Using what she learned in developing her model, a growing number of judges in Texas and Arizona have since presided over their own virtual jury trials, including those with binding verdicts.
Plexiglass shields have been installed in courtrooms in Collin County as safeguards for live proceedings. The judge's bench can be seen on the left, and the jury box on the right. Photo courtesy of Collin County.
While virtual proceedings can keep courts moving at a time when parties have more to fear from meeting in person than a bad legal outcome, they also proved to offer some advantages.
Courtrooms are intimidating, not least because appearing in one can have life-altering consequences. Many people fear public speaking in any setting, much less in front of a judge, lawyers or a jury. Miskel has found that those who appear before the court are more at ease when speaking from home, work, their cars or the street.
“Parents who come to the courtroom after their children have been removed by the government are very scared, and typically, they don’t speak up in a courtroom,” says Miskel. “When they participate remotely, they are more likely to talk and we get more information.” Attorneys have had a similar experience when examining witnesses or interviewing potential jurors.
Jurors say that the virtual format helps them get more out of testimony from witnesses. The jury box in a courtroom faces sideways relative to testifying witnesses, with witnesses 10 or 15 feet away. “On Zoom, they got a face-front view of the witness and could really see their facial expressions,” says Miskel. “They thought they were more engaged with the witness and could better judge their credibility compared to an in-person courtroom.”
Exhibits, including videos, are displayed on screen when presented as evidence, giving jurors a much better view of their contents than they would get from the jury box. Even though they will have access to these materials while deliberating, there is value in being able to follow along in context.
Translation is also greatly simplified. A virtual trial can have a channel for each language involved, and only one translator is needed for all parties. The translator does not have to travel to the courtroom, which can involve significant expense if the only qualified translator for a particular language lives in a distant part of the state. “I have access to interpreters no matter where they live,” says Miskel. “I’m excited about that.”
Many of the parents in the cases Miskel hears are indigent, and virtual proceedings are a significant benefit for them. “They can’t take a day off work, they don’t have transportation to get to the courthouse, they don’t have child care, they can’t come and wait around for three hours in the middle of the day, and that excludes them from being able to participate,” says Miskel. “Now they can, and by lowering these burdens you increase the equality of the justice that everyone is receiving.” Hearings can be accessed via telephone if no other option exists, but to date, even the poorest parents have generally found ways to connect to the video stream.
The view from inside a newly configured witness box. Photo courtesy of Collin County.
Urgent and Important
Miskel began her return to the courthouse in August, one day a week, to accommodate those who prefer to appear in person. The courtroom has been fitted with plexiglass dividers to protect her, witnesses and the jury, though she has yet to preside over an in-person jury trial.
Even live hearings generally include participants who appear remotely. The courtroom is equipped with a webcam and a large screen on which the Zoom participants can be seen. “Those hybrid proceedings are more challenging than when everybody is on Zoom or everybody is in the courtroom,” Miskel says.
It’s impossible to know what the coming months will bring in terms of public-health orders, and what restrictions regarding public gatherings will be lifted, added or reinstated. But whatever happens, some of the aspects of virtual court that have been piloted may become routine.
Jury selection is one example. An online voir dire process could be more efficient and prevent potential jurors from having to spend half a day or longer traveling to the courthouse, then waiting to be picked or excused. “Once you’ve picked the 12, they can come to the courthouse and we can continue with the rest of the trial,” says Miskel.
Remote trials also can give those in rural areas better access to justice. One of Miskel’s friends is a judge for six counties in west Texas, a jurisdiction that encompasses 20 percent of the U.S.-Mexico border and with no lawyers at all in some of the counties. If litigants don’t have to pay a lawyer to travel to their town to represent them, that can both reduce cost and increase their access to well-qualified attorneys.
For now, Miskel’s virtual courtroom is still open, and she’s looking for ways to increase the role that others on her staff can play in virtual proceedings. For example, bailiffs, who play a role in moving people around in the physical courtroom, could be trained to help with checking people in for Zoom sessions, moving them to breakout rooms or assisting them with technical problems.
In Miskel’s experience, even those most apprehensive about technology, worried about making mistakes or looking foolish, have an experience more positive than they expected when they go remote. The oldest judge in the county is now “Zooming like a champ,” she says. That kind of progress would have been unimaginable had not the pandemic created an urgent need to find new ways courts to conduct their business.
“If we had tried to do remote hearings in a normal time, this would have taken two years of committee meetings and judges still would have hated it,” says Miskel. “We were forced to figure out how to do it because we don’t want to shut down our justice system.” An emergency like a pandemic doesn't change a fundamental truth, she says: “We have to have a place for people to resolve their disputes — it’s urgent and it’s important."