Several states are making remote court a permanent option through presumptive policies, which list the types of court sessions that will be remote by default and the types that will be addressed in person.
In June 2022, Minnesota enacted a statewide framework detailing such choices for civil cases and aims in mid-2024 to present recommendations for more permanent policies that would also include criminal cases, said Jeff Shorba, Minnesota state court administrator. Shorba dug into the topic as part of a panel during this week’s National Center for State Courts (NCSC) Court Technology Conference.
In general, Minnesota’s guide assumes evidentiary hearings will be handled in person, and non-evidentiary will be remote. Judges can grant case-by-case exemptions in “exceptional circumstances,” such as if an in-person hearing would present a safety threat or if a party lacks the technology to attend a remote hearing.
Arizona published its own recommendations, crafted by a working group of judges, clerks, administrators and one lawyer, and the state officially adopted them in spring 2022, said Samuel Thumma, Arizona Court of Appeals judge. Arizona eschewed a statewide approach, instead letting local courts adapt the recommendations into local orders. The guidelines suggest that temporary restraining orders be held remotely, while in-person be used for jury selection.
“If words are going to come out of somebody's mouth after they've taken an oath that probably ought to be presumptively in person,” Thumma said.
Judges don’t seem to be disputing the guidelines — a 2023 Arizona survey found roughly 37 percent of judges saying they “rarely” deviate from the local orders, and about 34 percent saying they “occasionally” do so.
Not everyone wants court to go remote, however. Some trial lawyers are adept at being persuasive in the “theater” aspect of in-person court and may not know how to be similarly persuasive in a remote session, said lawyer Amy Sorenson, who co-chairs Utah’s Access to Justice Commission. An in-person hearing also provides opportunities to detect physical cues about a witness that may not be captured online.
“It’s basically the idea that [there’s] this opportunity to observe a witness and how they respond to questions and documents and things like that,” Sorenson said. “There’s really not a complete substitute for being in person for those kinds of things.”
Judicial system stakeholders have varying perspectives. Members of the public and lawyers might prefer jury selection be handled remotely, Sorenson said. For lawyers, video conferences can give them new ways to assess a potential juror’s character, by seeing what’s visible in the room behind the person when they call in, Sorenson said. For judges, this can be inconvenient because it means they can’t immediately move from jury selection to the court trial.
Plus, Shorba said, many judges feel cases are regarded less seriously if held virtually. But residents don’t appear to say the same. A December 2022-June 2023 survey of 3,300 hearing participants, due out later this year, found 76 percent saying they’d prefer remote to in-person hearings. Remote participants cited fewer difficulties attending, more reasonable wait times and even were more likely to say their case was treated with the seriousness and time necessary.
“It really gets to the philosophical question here: Who is court for?” Shorba said. “Is it for the people who come to court to have some of the most difficult situations in their life dealt with, or is it about us — the judges and staff?”
Surveys are showing a growing comfort with remote. Marcus Reinkensmeyer, director of court services for Arizona's Administrative Office of the Courts, pointed to NCSC’s 2022 State of the State Courts poll, which surveyed 1,000 registered voters. Fifty-nine percent of those 2022 respondents said they’d choose to conduct their business with the court via video conferencing if given the option. That’s up from 52 percent in 2021 and 43 percent in 2014 who said the same.
Similarly, Sorenson said a Utah-NCSC 2021 survey found 72 percent of litigants and lawyers in favor of remote hearings. That’s across age groups, with 93 percent of respondents 65 and older saying remote was more effective.
Generally, people say benefits of remote hearings include saving them time traveling to, or waiting for, hearings as well as sparing them from having to take time off work or find child care.
Remote options can also help a limited pool of professionals reach farther.
Shorba said his state is experiencing a shortage in public defenders and remote hearings mean time they would have spent traveling to courthouses can instead be used to handle more hearings in a day. In Utah, online hearings mean individuals in remote locations can get help from lawyers outside their areas, Sorenson said.
“Utah has 10 counties with less than 10 lawyers that live in those counties,” yet the counties account for more than 11,000 district court, justice court and juvenile court cases annually, she said.
