The Zooming of Federal Civil Practice
A look at using videoconferencing technology going forward.
Written by Lee Rosenthal, Christopher L. Dodson, and Scott Dodson
The COVID-19 pandemic threw American legal practice into disarray almost overnight. Courtrooms and law offices were closed, hearings canceled or adjourned, and case schedules suspended. The demands of litigation, however, have not abated. Instead, pandemic conditions have spurred lawyers and judges to adapt quickly, especially by using videoconferencing technology.
Although we expect pandemic constraints to be temporary, the technology is here to stay. How will reliance on videoconferencing during this pandemic transform lawyers, courts, and the law going forward? What changes to civil litigation practice should be embraced, what changes should be discarded, and what changes should await further technological advances?
We—the chief judge of the U.S. District Court for the Southern District of Texas, a litigation partner in Bracewell in Houston, and a professor of civil procedure and federal courts—explore these questions in the context of federal civil litigation.1 We identify the most promising uses for videoconferencing technology, strike cautionary notes for more pervasive implementation, and offer some suggestions for moving forward.
Meetings, Interviews, Court Conferences, and Motion Hearings
Meetings are often more easily arranged and far less costly when conducted remotely. Videoconferences are often crisper, shorter, and more focused than in-person meetings. And gone is the pressure to complete the task in a single, continuous meeting—a remote meeting can be broken out into several sessions with hours, or even days, in between. Videoconferencing technology makes meetings more flexible, more efficient, and, often, more effective.
Videoconferencing can also be effective and efficient for interviewing most parties and friendly witnesses, although in-person meetings might still be important for key client contacts and witnesses whose knowledge is heavily based on documents or whose credibility is suspect.
The days of multiple lawyers traveling cross-country—or even cross-town—for an in-person conference with the judge are probably over. Almost every discovery or status conference before the court can be held more easily via videoconference, with no sacrifice in the quality of the exchange. Because nearly all courts have conducted some proceedings during the pandemic via videoconference, the learning curve for lawyers and courts alike is now fairly flat.2
Motion hearings offer similar opportunities. Many work surprisingly well, with little cost to the institutional values that are important to preserve. The pandemic experience with videoconferencing has shown that lawyers can effectively argue their own contentions and point out problems in the opposition’s arguments, while judges can effectively press the lawyers. Some crucial or complex hearings, such as dispositive motions or Daubert motions, may benefit from in-person advocacy, engagement, and sparring, though videoconferencing can still be a good alternative with consent of the parties or when lawyers are scattered geographically.
Videoconferencing saves time and cost, makes scheduling easier, and alleviates the stresses of travel. Clients, lawyers, and judges are likely to press for permanent adoption of videoconferencing in these areas.
Depositions, Evidentiary Hearings, and Bench Trials
Depositions, evidence-intensive hearings, and trials present harder questions. Routine or uncontentious depositions likely can be conducted via videoconference for the same reasons as court conferences. But more contentious and important depositions and proceedings, as well as those that depend significantly on documentary evidence, present challenges.
Effective cross-examination of a hostile or evasive witness is more difficult remotely. A witness may be more likely to feel free to obfuscate, ignore, and be nonresponsive when testifying from the comfort and security of their home office or kitchen table. Virtual examination makes it hard for the examiner to maintain control over pace and tone and to police the flow of information to the witness. Attorneys defending the deposition may have difficulty objecting and controlling the witness. For contentious and important depositions, the lawyers’ physical presence may be important to the integrity and efficiency of the deposition.
Testimonial hearings and bench trials present similar challenges. Although the judge may serve as a strong moderating presence against recalcitrant witnesses, effective cross-examination may still be difficult and cumbersome remotely. The need for credibility assessments of fact or percipient lay witnesses, especially hostile witnesses, can present a strong case for in-person engagement. Our adversarial system is designed for in-person confrontation and challenge, which can be difficult to replicate by videoconference.
As a practical matter, document-intensive depositions, hearings, and trials are difficult to replace with current videoconferencing technology because it is still cumbersome to organize and present large volumes of documents—especially in adversarial circumstances when the participants may not know in advance which documents (or portions of documents) will need to be used. Some software platforms and hardware setups can enable remote viewing of both witness and document effectively, but the setups and technology are not in widespread use at this time.
Jury trials present special challenges; the logistics and the effectiveness of videoconferenced voir dire and jury deliberations seem to be two of the most severe obstacles. All of the downsides of effective witness examination via videoconferencing apply to jury trials and are made even more acute by the fact that a lay jury, rather than an experienced judge, must comprehend the evidence and make credibility determinations.
It is true that even these kinds of proceedings have seen some success using videoconferencing technology during the pandemic. These successes should be applauded and further developed. But the question is not whether videoconferencing is good enough in the time of a pandemic. The question is whether videoconferencing is good enough to replace in-person proceedings as a matter of course in a post-pandemic world. We suspect that most contentious, credibility-driven or document-intensive proceedings will, at least in the immediate post-pandemic era, revert to being in person by default, though we predict that videoconferencing will remain an option when the balance of hardships favors it.
Access, Transparency, and Decorum
Although videoconferencing offers great promise for federal civil litigation, not every party can obtain access to the requisite technology. Many pro se parties and prisoners do not have a hardware device or videoconferencing software. Public libraries and detention facilities can bridge this divide by installing compatible videoconferencing software on library and facility computers to allow remote participation by such litigants, but even then, courts should take the access burdens of videoconferencing seriously.
Videoconferencing has additional implications for the courts. Courts have put videoconferencing access links on their websites and have publicized videoconferencing access using social media. These efforts have the potential to transform public access to the courts; approximately half a million people listened live to the U.S. Supreme Court telephonic oral arguments held during the pandemic and nearly two million have listened to the recordings online,3 vastly more than the number of physical seats allowed to be filled in person.
Although remote viewing of live court proceedings does present risks of unauthorized making or distribution of recordings, we are not aware of those risks materializing during the pandemic. Courts can give a clear directive that listening is to be via audio only, on mute, with no shared video, and conditioned on an agreement not to broadcast, record, or transmit. A judge may require participants who are not lawyers or clients to identify themselves, both orally on the record, and by naming their avatars not with a phone number or a cute name, but with their real names and affiliation. These safeguards have proven effective at curbing abuses.
Other aspects of videoconferencing technology might adversely affect decorum. Physical courtrooms feature a judge in a robe, elevated on a bench, with flags, the court seal, and portraits of former jurists, along with the formal cry opening court and the tradition of rising when the judge enters and leaves. These traditions of solemnity and formality bring home the fact that even in the most mundane of hearings in the least complicated case, this third branch of government, an institution to cherish and support, is the justice system at work.
We think some simple steps can protect these values even when using videoconferencing technology. Each participant—judges included—should dress in courtroom attire. Each participant—judges included—should use a professional virtual background. Lawyers should name their virtual presence using their real names, firms, and client. Professionalizing remote participation can reinforce the formality and solemnity of the occasion.
Although many aspects of federal civil litigation are still most effective in person, efficacy has always been balanced against efficiency, cost, and convenience. The pandemic has taught that videoconferencing can offer powerful cost savings and efficiency gains, and with, in some circumstances, only marginal loss of efficacy. Permanent videoconferencing adaptations should be considered for witness interviews, low-value depositions, status conferences, routine court hearings, and the like, especially when they involve burdensome participant travel or difficult scheduling logistics. By contrast, adversarial events that depend on extensive documentary evidence, witness confrontation, witness-credibility assessments, or the participation of a lay jury are likely to return to an in-person default.
Yet we see great promise for far more pervasive and routine use of videoconferencing in the future. That future requires uniform (or at least universally compatible), widely accessible, relatively easy-to-learn, functional, and secure technology, technology that is also flexible enough to accommodate the diversity of litigation practice and cheap enough to make the game worth the candle. Such technology is not an idle daydream, not if email is any precedent. Indeed, there is reason for great optimism. Litigation technology has a long track record of success, and we think videoconferencing technology, even today, offers a solid foundation for foreseeable progress. Videoconferencing could be particularly useful if partnered with software developed for managing and displaying documents effectively. We urge—with the care and deliberation that can be afforded in a post-pandemic world—continuing advances in videoconferencing technology, coupled with gradual adoption and use, in certain circumstances, among the bench and bar. The opportunities for creativity, and the benefits that can result, make it all worthwhile.TBJ
This article is an excerpt from “The Zooming of Federal Civil Litigation,” which was published in the fall 2020 issue of Judicature, and has been edited and reprinted with permission.
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is the chief U.S. district judge for the U.S. District Court of the Southern District of Texas.
is a partner in Bracewell in Houston.
is the James Edgar Hervey Chair in Litigation and Geoffrey C. Hazard Jr. Distinguished Professor of Law at UC Hastings College of Law.