Saturday, June 20, 2020 | 2 a.m.
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Years from now, I hope we’ll remember this strange time in our history as a turning point where we began to rethink the way we do many things we’ve been doing just because it was how we always did things.
As an attorney, I would argue that the legal system is especially ripe for change.
For starters, we should be embracing new technologies that not only protect people by promoting social distancing, but also save time, energy and money. We should make better use of technologies, in particular video conferencing, to reduce the costs and burdens of our legal system.
Currently, clients often pay attorneys to drive to a congested downtown courthouse and sit shoulder-to-shoulder with other lawyers, sometimes for an hour or two, before a case is called, only to have the attorney stand up and argue before a judge for 15 minutes or less. Following the hearing, the lawyer pays a parking fee, drives back to an office and resumes work. This can consume half a day or more. All the while, clients are paying for this time.
This routine seems outdated in an era where the rest of the world is “Zooming” without leaving the comfort of home. While local courts provide attorneys the option to appear via the BlueJeans video conferencing service, many lawyers believe they will be at a strategic disadvantage if they don’t appear in person for an argument or hearing.
To promote technological efficiencies and ease the massive footprint in local courthouses, judges should consider mandating and ordering participation through video conferencing for all but the most significant hearings.
Think about the millions of tax dollars we’ve spent building, staffing and maintaining these ever-expanding courthouses.
Then there’s the more complicated issue of jury trials. How many people feel comfortable right now sitting shoulder-to-shoulder with a group of strangers in a crowded courtroom for days on end?
Consider also the demographics of jury composition. Retired and elderly people make up a big percentage of today’s juries. Since older people and those with underlying conditions are more susceptible to COVID-19 (which has also had a disparate impact upon many minority communities), you have to wonder how this pandemic may change the makeup of juries in the immediate future.
When courts fully reopen, I suspect most judges will excuse potential jurors who aren’t comfortable serving because of health reasons. Judges have the difficult job of balancing the importance of jury service with the safety needs of citizens being called upon to serve. There is no guidebook for judges to rely on here. This is an unprecedented situation and has presented a dilemma for the legal system never previously encountered to this degree and scale. But through this difficulty, however, is the opportunity for transformational change that can refine aspects of our justice system that are long overdue for reformation.
The legal system is historically set in its ways, notoriously inefficient and slow to adopt new technologies. But for better or worse, COVID-19 is forcing change.
In May, lawyers in an insurance dispute case in Collin County, Texas, picked a jury through videoconference. This may be the first virtual jury trial held anywhere in the country during this crisis. Potential jurors logged in from smartphones, laptops and tablets to participate in a process that was streamed live on YouTube.
Texas officials called it a good way to test the viability of holding jury trials remotely during the pandemic.
“You can’t drag people down to the courthouse and make them sit together for days at a time,” Texas Supreme Court Chief Justice Nathan Hecht told Reuters. “It’s just too dangerous.”
That’s a fair point, although I do not personally believe having juries decide cases remotely through technology is the answer. Too many aspects of what makes the American jury system unique would be lost with this approach.
The answer instead may lie in how we design and configure our courtrooms and jury deliberation rooms. Increasing the size, but reducing the number, of courtrooms may be the future — especially if judges can conduct more routine hearings from their chambers through video conferencing without the need to “take the bench” for every proceeding.
In other words, the solution may be shared courtrooms reserved for trials and important hearings with judges conducting more business from their chambers. As it is, very few criminal or civil cases ever make it to a jury trial, so the most common use of most courtrooms is for routine proceedings.
There are no easy answers. But history has shown us that from every crisis comes opportunity. Here’s hoping we take this chance to rethink the way we do things — in and beyond our justice system — without compromising our cherished system of jury trials. COVID-19 has claimed enough victims.
Las Vegas attorney Paul Padda, a former federal prosecutor, is the founding partner of Paul Padda Law, which is headquartered in Las Vegas with an additional office in Los Angeles.
