Courts’ technology advances are likely here to stay

As the saying goes, the law is not a fool, but it is a traditionalist. One of the most basic principles is precedent -- to follow what came before, which is another way of upholding tradition. But adherence to tradition shouldn't be blind, and the COVID-19 pandemic has pushed the practice of law and courts to make bigger changes in their traditions than at any time since attorneys stopped wearing powdered wigs in court.

Quickly realizing that the already-overloaded justice system in California would become inundated unless cases continued during COVID-19, both state and federal courts in California took unprecedented steps. Courthouses closed to everyone except direct participants in cases, paper filings and chambers copies of filings vanished, and appearances went virtual.

Even before Gov. Gavin Newsom's March 19 Executive Order N-33-20 directing Californians to self-isolate, the California Supreme Court justices issued an en banc order requiring all oral argument to be conducted via teleconference, but still allowed in-person attendance by press and others. Admin 2020-03-013.

California's highest court began webcasting live oral arguments in 2016, but attorneys were required to appear in person. But in a second en banc order on March 27, the court required attorneys to appear by videoconference and limited justices in the courtroom to five so that they could be distanced, with the other two justices participating by videoconference. Admin 2020-03-27. The California Supreme Court also changed its paper filing rules and instead required that all filings to be made electronically and eliminated service of paper copies.

Federal courts did the same. For example, the U.S. District Court for the Northern District of California issued General Order 72 in mid-March directing that all civil matters would be decided on the papers, or if the assigned judge believed a hearing was necessary, the hearing must be held by telephone or videoconference. On April 30, the U.S. Supreme Court made an historic announcement that it would hold oral arguments via videoconference, with attorneys and all justices appearing remotely. More on that later.

State agencies have been transformed. Since mid-March many state agencies have implemented virtual hearings and online services. The California secretary of state's office now allows online filing of routine documents such as corporate formations and statements of information. This process was previously entirely paper and manual and would take weeks to accomplish unless the filer was willing to pay hefty fees for same day service.

In June, Gov. Newsom issued Executive Order N-71-20, allowing adults to obtain marriage licenses via videoconferencing rather than in-person, suspending face-to-face visits for eligibility for foster care, permitting In-Home Supportive Services Program caseworkers to continue caring for older adults and individuals with disabilities through video-conferencing assessments, and perhaps most joyous to Californians, absolving them from standing in line for hours at the DMV by extending provisions for mail-in renewals of driver's licenses and identification cards.

Are these changes good? Yes.

Moving the legal world online and to remote access has oddly humanized the profession. During video conferences, we can literally see into opposing counsel's office or more likely their home. We see their choice in art and décor. No matter how experienced a litigator may be, she or he must adapt to technology -- frequently grappling to unmute the mute button or adjust the frame so the top of their head is not cut off. Judges must do the same.

Prior to COVID-19, it was difficult to appear remotely in many courts. Often an attorney had to file a formal motion seeking permission to appear by phone and some judges simply disallowed telephonic appearances. Why make it so hard? It is likely that the vast majority of requests were made to balance the many demands on an attorney's time. Instead of billing a client for travel time and sitting in court waiting in the case cattle call, video conference arguments give attorneys an hour or two back for other work, or real life.

Like any change, the move to virtual appearances and meetings have not been seamless. It is now clear that the multi-tasking that everyone does is not limited to boring conference calls. Virtual law magnifies human behavior for all to see -- or hear. Surely the most embarrassing incident was the clear sound of a flushing toilet during a videoconference oral argument at the U.S. Supreme Court in Barr v. American Association of Political Consultants, 19-631. (Ironically the topic of the case was communications -- whether the U.S. government could legally exempt auto-dialed calls to cell phones for collection of debts owed to the government while disallowing such calls for other purposes).

Other examples of real life intruding into the virtual courtroom have occurred in California courts as well. In Alameda County Superior Court, the defendant's attorney in an asbestos exposure case complained in a motion for a mistrial that during a videoconference voir dire, one prospective juror was laying in what appeared to be a bed, "curled up, and possibly asleep," a second was working out on an elliptical machine, and others appeared to be using computers while having the videoconference playing on another device. Ronald C. Wilgenbusch and Judith A. Wilgenbushc v. American Biltrite, Inc., et al., RG19029791. While these behaviors are far less than ideal, potential jurors sitting in a court room during voir dire likely do not pay rapt attention to the questioning of other potential jurors either.

Despite the glitches, technology advances in government, the courts and the law are a positive development and likely here to stay even after COVID-19. 