As numerous lawyers already know from firsthand experience, many courts have had to adapt to the ongoing COVID-19 pandemic in order to continue operations while social distancing. A number of courts, especially in areas hard-hit by the pandemic — like New York and New Jersey, where I practice — are conducting virtual hearings and conferences because of current health concerns. In many circumstances, courts have used Zoom, Skype for Business, and other platforms in order to conduct virtual operations, which was rarely done before the pandemic. However, the tried-and-true method of holding court proceedings by phone is the most efficient way to conference matters in most circumstances.
Even before the COVID-19 pandemic impacted the courts system, it was not uncommon for court proceedings to be held by phone. Sometimes, attorneys were stuck in traffic and could not be at an appearance on time, so they were allowed to call into the proceedings remotely. At other times, attorneys had conflicts, and were given the ability to call into conferences by phone so that everyone was available to conference a case at a time that was acceptable for a court. In other instances, when conferences concerned trivial matters, courts did not see the need to bring all the parties into court to discuss the matter, and judges were content with holding conferences by phone. Most attorneys are used to calling into court conferences, and this typically involves using a call-in number and access codes, a process that is pretty hard to mess up.
However, since almost all court operations are being conducted remotely, many courts for the first time have been using videoconferencing platforms to hold court conferences recently. It has been difficult for many lawyers to get used to this new technology. As this website has covered at length, some attorneys have even appeared shirtless, in bed, or with unprofessional backgrounds while participating in videoconferenced court proceedings. I’d like to hope that this was due to misunderstandings about the technology, but we can’t count out the fact that some lawyers may have simply not understood decorum over videoconferenced court proceedings.
In any case, there are other practical concerns with videoconferencing court proceedings, which I have noticed while participating in remote court conferences over the past several months. If someone is on a videoconference, it is much more difficult for them to change rooms. Most people call in to remote court proceedings from home, and it is sometimes necessary because of noise and distractions to change locations. However, it is very difficult and awkward to change locations in your home when you are videoconferencing, since it is hard to keep the camera on your face, and other people on the call can see you moving around.
Furthermore, the use of videoconferencing apps is causing significant delays in some court proceedings. Sometimes attorneys need to download software in order to participate in videoconferenced court proceedings, and this can hold up appearances. In addition, issues with the internet can make the audio and visual feeds extremely choppy, which can make it difficult to understand what some people are saying. Moreover, videoconferencing usually makes the process of attending a court proceeding more stressful. When people videoconference, they need to make sure their space looks tidy, wear professional clothes, and take extra steps to ensure that people do not bother them during the call. Since people are usually home with some level of craziness already going on all around them, this can make an already stressful event even worse.
While it is understandable why courts wish to connect with attorneys through video, many judges have continued to simply hold phone conferences recently, and the results have been mostly great. Although people may sometimes talk over each other a little more on a telephone conference versus a video conference, this is usually not a big deal unless there are numerous attorneys on a call. Indeed, I recently attended a settlement conference by telephone, and although the case did not settle, the conference went smoothly. All of the parties could understand each other, and if the judge wanted to speak to one attorney without the other attorney listening, he could just call each lawyer directly. I admit that I have been on phone conferences that went too long, and the next conference called in, interrupting our conference. In addition, I have been on some videoconferenced court proceedings that have gone very smoothly. However, by and large, court conferences by phone have been the most efficient and least stressful way to hold remote proceedings.
All told, if the Supreme Court is conducting their oral arguments by telephone, courts across the country should also consider ditching videoconferencing in favor of the old-fashioned conference call. Dozens of judges and litigators have emailed me over the years, and I’d love to hear any input from jurists or practitioners about why videoconferencing is preferable for run-of-the-mill court conferences. Of course, evidentiary hearings, trials, and proceedings that require people to be seen may be better by videoconference. However, holding most remote court proceedings by phone can help reduce stress and eliminate technical challenges inherent with videoconferences.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.