Across the country, restaurants are changing what it means to be a restaurant, movie theaters are changing what it means to be a movie theater, and conferences are changing what it means to be a conference. So maybe it’s time for courtrooms to look into changing what it means to be a courtroom. With the frequency of communication by Zoom these days, many have advocated and tested the idea of a trial that is run substantially or entirely via web-conferencing. Reactions from attorneys can be arranged along a spectrum that runs from “Let’s try it, carefully…” to “Hell no!” The cautious end of that spectrum, I think, is appropriate. But the other end, in my view, reflects a conservative tendency in the legal field, a tendency to be suspicious of new ideas and to resist change even when the necessities for change are overwhelming.

Regarding the wisdom of online trials, one recent example from the “Hell no” end of the scale -comes in an article in New.Law by Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue. The article, “Zoom Jury Trials: The Idea Vastly Exceeds the Technology” argues that, for any case with moderate to high stakes, the web-conferenced trial is “not only a bad idea, but a very bad idea.” After participating in the first binding criminal trial conducted via Zoom in early August, the authors argue emphatically against the possibility that online trials could replace in-person trials, either during the pandemic or after it has run its course. They offer a laundry-list of potential problems regarding technology, communication, and juror and witness honesty, all of which deserve attention and response. But what stands out to me is a reflexive focus on limitations and not on solutions, possibilities, or potential advantages. The in-person courtroom trial is steeped in tradition, and that should make us extremely careful in making changes. At the same time, never has our modern society faced more of a need to look for new ways of communication, and we cannot afford to let the law’s conservative habits act as an inflexible barrier to innovation. In this post, I will take a closer look at the article and my own reactions.

Be Careful, but Don’t Reflexively Reject Online Trials

In this short blog piece, I won’t take on the task of addressing every practical issue that is likely to come up in the course of an online trial. For that, take a look at the comprehensive report from the Online Courtroom Project’s first demonstration trial.

What is important to note from the Lapinski, Hirschhorn, and Blue article, however, is that a listing of challenges alone does not foreclose an option. In many instances, they focus on very solvable problems. For example, they ask, “If one of the other jurors can’t hear or see their fellow jurors, is it another juror who fixes the problem or do they call someone? Who exactly do they call? Presumably the Zoom Host, but who is the Host? Now the court must arrange for additional training and the associated expense of either training court staff or hiring additional IT professionals to serve as Zoom Hosts.” Right, get training, identify a host, and give jurors a contact someone if there are technical difficulties. That is do-able.

They also ask, “What prevents [jurors] from searching the internet for answers or additional information?” It would be the same thing that prevents in-person trial jurors from Googling answers during the two-thirds of the day that they’re not in court: An oath, along with a judge explaining the rules and the reasons for the rules.

I don’t mean to play-down the challenges that apply to any trial forum. They are serious challenges. But “serious” doesn’t mean “unsolvable.”

And Do Ask ‘Compared to What?’

The authors call current resumed in-person trials “The best argument of all against conducting jury trials via Zoom.” But they do so without considering any of the limitations of socially-distanced, sanitized, and masked trials on efficiency, communication, or personal safety. The current examples of resumed in-person trials seem to be relatively few and far-between, and so far, the volume doesn’t support the argument that trials with these practices could make a meaningful dent in the trial backlog. They also do not make the argument that today’s in-person trials are sacrificing nothing when compared to online trials.

If the question was, “Should we move to online trials instead of conventional pre-pandemic in-person trials?” the answer would be very different. If there is truly no problem with summoning a broad swath of the population to spend time in confined spaces, then sure, let’s continue to do it in person. But in the midst of the long-term disruption of the current pandemic, the proper comparison is not to pre-pandemic trials, but to the highly constricted and still-risky trials with precautions. If online trial advocates can be painted as overly optimistic, surely it is at least as optimistic to think that trials using stadiums or only the largest courtrooms could handle the needed volume and resolve the backlog.

Seeing a witness on web-camera may lose a bit of non-verbal nuance, but does it lose as much as is lost behind a mask? Relying on citizen’s technology might create access challenges, but are those challenges really greater than the challenge of excluding jurors who are older or in poor health? Hoping that the technology works for everyone is daunting, but is it more daunting than hoping that the anti-virus precautions work for everyone?

In any kind of transition to a different mode for trials, the answers aren’t likely to be easy. But the answers are likely to be found in the same factor that guides court personnel as well as trial teams: Careful planning.