In Observing Online Courts: Lessons from the Pandemic, Elizabeth Thornburg looks at Texas as a case study for how the legal system has adapted to online courts with uncharacteristic speed during the Covid-19 pandemic. In mid-March, the Texas Supreme Court and Court of Criminal Appeals issued a joint order stating that all courts in Texas may allow or require anyone involved in a legal proceeding to participate remotely through teleconference, videoconference, or other means. The Office of Court Administration in Texas then purchased Zoom licenses for judges and trained them in how to create public access to remote proceedings on YouTube. This article describes an observational study of what happened in Texas courts from March to August, 2020, during which there were about 440,000 remote hearings across a variety of types of cases and proceedings. The article focuses on family court cases, because they were among the first to utilize remote hearings, and since family courts face the same issues as trial courts, the findings could apply to other courts more generally. Thornburg suggests that in thinking about the policy concerns associated with remote proceedings, we should shift our interpretation of courts as providers of services rather than as buildings, and how utilizing those services in different forms and locations could impact access to justice.
Observers in the study noted that judges were instrumental in the process of providing technological support and creating a sense of justice and empathy over Zoom. Lawyers had added obstacles of preparing to present evidence over video, preparing witnesses for how Zoom could affect the way they give testimony, and figuring out how to communicate with clients during trial. Hearings where no documentary evidence needed to be introduced went more smoothly, but both lawyers and judges became more proficient in online hearings over the course of the study.
Parties and witnesses tended to struggle most with technology, especially if one of the parties appeared pro se or if they were in locations where there was a lack of privacy or quiet. While there was concern at the outset about how the digital divide would affect access to remote hearings, most were able to connect, whether through home internet, attorneys’ offices, facilities at the courthouse, or cell phone. While about 48% of the hearings had some kind of technology-related problem, most of them were minor (such as having trouble logging in or speaking while muted) and easily solved.
Thornburg also considers privacy concerns, given that while hearings are normally open to the public, broadcasting them on YouTube further increases their level of visibility. The study also looks at how online proceedings affect fact-finding and accuracy. Some concerns are the inability to ensure the witness is alone, difficulty in reading body language, and that low-quality video could make testimony less informative. Thornburg considers these concerns, mitigating factors, and more findings in greater depth in the article.
Ultimately, the study found that there was an increase in court access due to people not having to find childcare, take time off work, or find transportation. Another benefit was that Zoom can be an equalizing platform, given that everyone is the same size on the screen. Thornburg suggests that public availability could further increase with the use of other technology, like sharing information via text message. While courts will be able to resume in-person hearings at some point, it could be beneficial to continue some online or hybrid proceedings. More complex cases might be better suited to in-person hearings, but most uncontested hearings could remain online. She writes that a silver lining of the pandemic has been the ability to study how technology affects access to justice and that these are things courts should continue to consider going forward. To read the full report, see Thornburg, Elizabeth G., Observing Online Courts: Lessons from the Pandemic (September 21, 2020). Available at SSRN: https://ssrn.com/abstract=3696594 or http://dx.doi.org/10.2139/ssrn.3696594
 Thornburg, Elizabeth G., Observing Online Courts: Lessons from the Pandemic (September 21, 2020). Available at SSRN: https://ssrn.com/abstract=3696594 or http://dx.doi.org/10.2139/ssrn.3696594 at 2.
Claire Mendes is a law student at University of Missouri-Columbia. She has a B.A. in English and Philosophy from St. Lawrence University.