Like the continuing need to have a ‘pocket mask’ in many places, the online judicial meeting or hearing has become an accepted fact of almost-post-pandemic life. But, chances are, the remote hearing will last longer (knock on wood). At this point, we are seeing systematic attention on the question of how the remote hearing can be permanently integrated into our courtroom systems, and it can be improved. The latest move in that direction is a high profile study of the state courts of Texas that came out late last year (National Center for State Courts, December 2021). The study looked at the effects of remote hearings on time management for judges, with observations conducted during the month of April, 2021, and follow-up focus group discussions with judges taking place in October, 2021.

The study asked 52 judges to record the time they spent in both remote and live hearings in a variety of hearing types. Collectively, the data included 1.25 million minutes of judicial data and focus group feedback. The key finding is that while remote hearings improve access to parties, they also take a little longer. Specifically, remote hearings took an average of about one-third longer, and that longer duration applied in ten of the eleven types of hearings examined (all but modifications/enforcement actions). The access part of the conclusion seems to confirm conventional wisdom, but the reduced efficiency may come as a bit of a surprise — although it aligns with some other reported results in Nevada and Utah — because we tend to expect technology to improve efficiency. In this post, I’ll take a look at the NCSC’s findings and their implications. 

Are Online Hearings Less Time-Efficient? 

If the study was conducted at the start of the pandemic, it might be easy to dismiss the extra time as a matter of getting up to speed. But this was April 2021, not 2020. However, if you recall where we were a year ago, I still believe we were not yet pros at using the online meeting — in many ways, we still aren’t. The theory among the judges was that online meetings take longer due to technical challenges and glitches. The fact that, of the hearing types examined, contract hearings took the longest (more than four times as long as their in-person counterparts), suggests that the longer time in that case type may be due to the necessity of document sharing, which can be difficult with Zoom.

There is also a possible selection effect. While the study did not mention it, hearings were not randomly assigned to being held in-person or remote. In fact, during this time period 85 percent of the judges’ time was remote, with only 15 percent being in-person. So rather than saying, “all things being equal the online hearing increases time,” a rival hypothesis is that “all things being equal, longer hearings were more likely to be online by choice.” In other words, if we have a quick matter to resolve in hearing, maybe we’ll deal with the masks and the barriers for ten minutes, but if it is expected to be longer, we set something up for Zoom.

How Do We Improve Efficiency and Access? 

Whether the conclusion that online hearings per se take longer is valid or not, we should still look for ways to streamline the process. In surveys included in the report, attorneys tend to say they are satisfied with the efficiency of online hearings (in Texas the positive view is 73 percent for attorneys). In the focus groups, judges reported “a unanimous belief was that the use of remote court proceedings will continue,” however the groups stressed a need to improve efficiency and access.

Some of the recommendations coming out of the report:

• Develop internal guidelines on what types of hearings should be presumptively handled in a remote fashion.
• Develop concrete and well-known procedures for online hearings to be scheduled, initiated, and conducted.
• Clarify that the same rules or courtroom conduct and decorum apply, or specify any rules or expectations which may be different.
• Provide in-court or off-site access for those who do not have access to the proper equipment and/or internet connections.
• Provide a space (breakout room) for informal discussion before, during, or after a hearing — the virtual equivalent of a lobby — where parties can reach agreements.
• Learn about any special needs or considerations in advance of the hearing.
• Improve the ability of platforms like Zoom to easily accommodate interpretation for non-English speakers.
• Employ a “technical bailiff” to run a technology check in advance for anyone who does not routinely use web-conferencing.

At some point in the hopefully not too distant future, that pocket mask will become a thing of the past. But the online hearing is likely to still be with us, and as long as we embrace the task of making the process efficient, that is a good thing.

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National Center for State Courts (December, 2021).The Use of Remote Hearings in Texas State Courts: The Impact on Judicial Workload. Final Report. URL: https://www.ncsc.org/_media/_imported-ncsc/files/pdf/newsroom/TX-Remote-Hearing-Assesment-Report.pdf

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