Not too long ago, when the global electronic business network we enjoy today was first emerging, lawmakers across the country were quick to spot a problem: hundreds of federal and state laws required that contracts, testamentary documents, deeds, filings, and other critical documents be “signed” and “in writing.”
The recognition that electronic commerce could not grow reliably without laws that explicitly validated the use of electronic means of conducting business led to rapid state adoption of the Uniform Electronic Transactions Act and, at the federal level, the Electronic Signatures in Global and National Commerce Act of 2000. These laws generally ensured that electronic signing has the same force and effect as physically signing a piece of paper. The rest, as they say, is history.
A similar legal reform effort is underway today in the wake of the COVID-19 pandemic. Laws that appear to require physical presence, or assume that acts with legal significance take place at a particular physical location, or limit judicial processes based on physical distances from a courthouse, are being reviewed with an eye toward eliminating legal barriers to the wide use of remote technologies in the legal system.
Legal experts across the country are studying the role that emerging technologies can – and should – play in improving the administration of justice after the exigencies created by the pandemic have passed. In many states, these policymaking efforts are also examining the extent to which technology is exposing the need for substantive changes in longstanding procedural and evidence rules. In Arizona, for example, a workgroup convened by the Arizona Supreme Court to recommend permanent technology-enabled improvements to existing court processes has already met 60 times during 2020-21.
Studies recently released by policymakers in Arizona and other states during the past few months reveal a legal system that is on the verge of unprecedented change in the very near future.
Current Rules Contain Outdated Assumptions
In Ohio, for example, policymakers are engaged in a searching exploration of ways to increase the use of technology in court operations. The Ohio Supreme Court’s Task Force on Improving Court Operations Using Remote Technology recently issued a detailed summary of legal reforms that would be necessary to facilitate wider use of technology in judicial operations.
Among the areas for possible legal reform are many provisions in the Ohio Rules of Court using language that could be interpreted to restrict the ability of courts to order parties to appear remotely.
Consider the following common legal terms:
- “In chambers”
- “In person”
- “In the presence of”
- “Open court”
- “Personal appearance”
- “Physical presence” or “physically present”
- “Shall appear before the court”
These terms are sprinkled throughout Ohio’s criminal procedure rules, civil procedure rules, evidence rules, and traffic court rules.
The Ohio study group recommended that all of these rules be examined for possible revision if they “could potentially be construed to require an individual to be literally face-to-face with another person in a designated location.”
Other legal reforms under consideration in Ohio include amending civil procedure rules to explicitly authorize the right to obtain discovery “in person or remotely,” to include “other remote technology” as an allowable method of recording and to permit the electronic transmission of a deposition.
Without legal reforms along the lines of those being considered in Ohio and elsewhere, the path to greater use of remote technologies in the legal system will be strewn with inconsistent outcomes and avoidable ligation over the meaning of legal terms that weren’t written with online legal processes in mind.
During 2021, for example, several federal courts have been asked to apply the physical distance limits found in Rule 45 of the Federal Rules of Civil Procedure to remote depositions. Rule 45(c) allows the issuance of a subpoena to “command a person to attend a … deposition … within 100 miles of where the person resides, is employed or regularly transacts business in person.”
In U.S. v. $110,000 in U.S. Currency, No. 21-c-981 (N.D. Ill., June 10, 2021), a witness argued that a subpoena calling for a remote deposition, issued by government attorneys located in Nebraska, exceeded Rule 45’s 100-mile limit because the witness resided over 100 miles away in Illinois. The court rejected the witness’s contention that a remote deposition takes place where the questioner is located. According to the court, the purpose of Rule 45(c)’s 100-mile limit is to minimize the inconvenience of travel for the witness – not to place a geographic restriction on subpoenas for remote depositions.
“[P]roceeding virtually with Madden in Chicago and some Government attorneys in Nebraska prevents the harm Rule 45(c) is meant to guard against,” the court said. “Madden’s place of attendance for the subpoenaed deposition is the Chicago Office of the United States Attorney for the Northern District of Illinois. This is the same city in which Madden resides and less than 10 miles from his home. … [T]he fact that the Government attorneys leading the deposition will participate remotely from Nebraska does not change this analysis.”
Other recent cases reached similar conclusions. See Broumand v. Joseph, No. 20-cv-9137 (S.D. N.Y., Feb. 27, 2021) (compelling virtual testimony does not move a trial to the physical location of the witness), and Int’l Seaway Trading Corp. v. Target Corp., No. 20-mc-20-mc-00086 (D. Minn., Feb. 22, 2021) (“Virtual attendance of this nature is consistent with the plain language of Rule 45(c)(1)(A) because . . . [the witness] can comply with the deposition from his home or anywhere else he chooses that is within 100 miles of his residence.”).
It’s easy to see how the wider deployment of remote technologies in the legal system might be impaired if parties are forced to litigate piecemeal the meaning of common legal terms such as “open court” or “in the presence of” in the context of virtual legal proceedings.
Wider Use of Technology Is Favored
In a report released earlier this year, the California Judicial Council stated:
“California courts should expand and maximize remote access on a permanent basis for most proceedings and should not default to pre-pandemic levels of in-person operations.”
The report’s drafters outlined several benefits of remote hearings. During the pandemic, remote access to the courts resulted in greater access to the courts, cut down on pollution created by travel, increased transparency and access to court proceedings, and enabled pro bono attorneys and legal aid providers to serve more clients with greater efficiency, the report stated.
California lawmakers recently adopted two measures promoting remote technologies in court. On Sept. 22, California Governor Gavin Newsom signed into law SB 241, a measure that will allow California courts to conduct civil hearings remotely until July 1, 2023. Two days earlier, on Sept. 20, Governor Newsom signed SB 1146, which provided, among other things, that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court.
The Judicial Council is now considering revisions to the California Rule of Court 3.1010 that would govern how parties and attorneys of record can exercise their right to be present with the deponent during a remote deposition.
Attorneys seem to be managing the transition to remote hearings well. According to a recent survey released by Arizona court administrators, 53% of judicial officers replied that attorney preparation was not diminished when attorneys appeared using a technology-based platform. In the same survey, 54% of respondents indicated that attorney effectiveness was not diminished in oral argument when attorneys are not physically present.
The same survey revealed wide support for increasing the opportunity for remote access to the courts.
In Arizona, 21% of attorneys reported that preparation for remote hearings was more difficult than prior in-person practice, compared to 52% reporting “no change” in preparation and 14% who believed remote hearings required less preparation than in-person hearings.
Eighty percent of attorneys indicated that status conferences should continue to be held remotely after the pandemic passes. A majority of attorneys believed that pretrial motions (55%), initial criminal appearances (55%), and arraignments (54%) should continue to be conducted remotely. At the other end of the spectrum, just 5% of attorneys believed that jury trials should be held remotely.
Evidence Rules Are Also Under Review
In New York, study groups convened by the New York Court of Appeal are undertaking an ambitious, futuristic review of the intersection of technology and state law. In a recent report from the Future Trials Working Group Commission to Re-Imagine the Future of New York’s Courts, the drafters noted that state courts are now studying the implications of technologies that attempt to evaluate the truthfulness of witness testimony. These include technologies that identify deceptive statements, record eye movement and pupil dilation, record body language and fidgeting, or capture and assess changes in a witness’ vocal pitch.
Also under consideration and study in New York are artificial intelligence (AI) technologies that could potentially replace some of the work performed by judges and law clerks. Court operations that might be enhanced or replaced by AI technologies include producing automated real-time transcripts of trial argument and testimony, drafting routine court documents, using legal issue-spotting to streamline judicial decision-making, and ensuring that legal determinations are consistent with the results of similar cases.
Another fascinating area of legal reform being studied in New York is the treatment of evidence created by emerging technologies. Drafters of the future trials report expressed the concern that trial courts, which are already being asked to consider novel forms of evidence under existing rules, could use additional guidance. Types of evidence that will increasingly be offered include:
- Geolocation data from mobile phones and wearable computer devices
- Video evidence from mobile phones, drones, and wearable recording devices
- Facial recognition evidence
- Social media evidence concerning a person’s location, appearance, or mood
- Neuroimaging evidence
- Genetics evidence, which might be used in personal injury and toxic tort cases to disprove causation
- Internet of things and smart home evidence from sensors that collect and store data relevant to many types of legal disputes
“Judges need to be prepared to address these and other highly technical evidentiary disputes competently and efficiently,” the report stated. However, there is concern that these new types of evidence resist easy categorization under existing evidence rules. Revisions to evidence rules on hearsay and authentication may need to be revised to aid the resolution of high-tech evidence disputes that are expected to increase in the future.
The report drafters also predicted an increase in motions for sanctions and preclusion of evidence arising from alleged failures to preserve and produce these new forms of evidence.
Not Everyone Favors Wider Digital Justice
It’s important to note that not everyone supports swapping out in-person courtroom proceedings for digital platforms. Earlier this year in Michigan, three justices on the Michigan Supreme Court dissented from an administrative order providing that “trial courts are required to use remote participation technology … to the greatest extent possible.”
The order prompted dissenting statements from several justices. Justice Brian Zahra argued that the price of remote proceedings is “an increased risk that litigants participating remotely will make a mockery of court proceedings, with the court having little to no remedy available to sanction such disruptive conduct.”
Justices David Viviano and Richard Bernstein contended that in-person proceedings promote important constitutional (e.g., a criminal defendant’s Sixth Amendment right to confront witnesses) and social values (e.g., the symbolic importance of physical courthouses within the U.S. system of justice). All three dissenters said that they preferred giving trial courts discretion to choose between in-person and remote proceedings on a case-by-case basis.
Chief Justice Bridget Mary McCormack responded to the dissenters with a discussion of the public policy interests advanced by remote access to the courts. “Why should courts be the one institution that doesn’t benefit from the lessons learned from the accelerated innovation that COVID-19 brought?” she asked.
The state supreme court’s administrative order directed each county court system in the state to convene a meeting of local stakeholders charged with the responsibility of identifying, among other things, “potential permanent changes that might improve court processes.” These reports presumably will be the basis of future legal reforms promoting the wider use of remote technologies in the state’s courtrooms.
Researchers: Improve, Don’t Perpetuate, Status Quo
Policy debates such as the one in Michigan are taking place in courthouses across the country as court officials and lawyers work to chart a path forward and capitalize on the lessons learned during the past two years. In December 2021, researchers at the Pew Charitable Trusts published a study of emergency legal reform measures adopted in all 50 states in response to the COVID-19 pandemic. The researchers found that, while the emergency measures had the laudable effects of keeping courts open and improving public access to the courts, they also disproportionately benefited parties with legal representation and in some cases created barriers for parties with accessibility needs.
No matter where the policies ultimately land in each jurisdiction, we have experienced, and will no doubt continue to experience, tremendous change in how the law adapts to the post-COVID-19 landscape. While lawyers are not known to embrace change, the successful lawyers will learn from the last two years to adopt technology and use more flexible rules to deliver greater value to clients.