Special Issue • December 2020

Special Issue • December 2020
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Online Courts

Perspectives from the bench and from the bar

On April 23, 2020, the Center on the Legal Profession hosted a virtual book launch for Richard Susskind’s book, Online Courts and the Future of Justice.  That event, featuring commentary by the late Chief Justice of the Massachusetts Supreme Judicial Court (included below), occurred just as the full impacts of the COVID-19 pandemic were taking hold. In response to the emerging crisis, Professor Susskind wrote a follow-up article in our June/July issue of The Practice, “The Future of Courts,” outlining his latest thinking. On November 20, 2020, the Center hosted a further webinar, “Online Court: Perspectives from the Bar and the Bench,” in which we engaged with seasoned litigators and practitioners discussing their experiences in online courts. We also heard two lectures, one from Harold Hongju Koh of Yale Law School (“The Future is Now: Courts in the Cloud”) and another by Sir Geoffrey Vos, the incoming Masters of Rolls of England and Wales, on the future of courts in the United Kingdom. For videos of the full events, see below.

Perspectives from the Bar

The following excerpts, lightly edited, are based on a panel discussion between Jamie Gorelick, Partner, WilmerHale; former deputy attorney general of the United States; Colin Passmore, Senior Partner, Simmons & Simmons; Leonora Sagan, Barrister, Fountain Court Chambers; and Kathleen Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan; former dean, Stanford Law School.

On Litigating through the Pandemic

Colin Passmore, Senior Partner, Simmons & Simmons

I never, in my worst nightmares thought that I would be involved in a remote trial. If we wind back to February and March of this year, we were heading towards trial and the start date was the 8th of June. The pandemic hit, and we weren’t entirely sure at that point whether the case was going to go ahead, but we’d already had two quite lengthier adjournments. The parties wanted to work together to get the case concluded, as did the judge. And we had literally two months to prepare for this online trial.

Let me tell you about the trial. It was a claim by a private equity firm against a bank. The claim was in fraudulent misrepresentation—it was a civil fraud case, lots of serious allegations. The headline claim was for 1.5 billion pounds. There were 17, 18 factual witnesses. There were four expert witnesses. We kicked off on the 8th of June. We finished the evidence on the 9th of August. We had two months off and we came back in the middle of October for the oral closing submissions and, as matters stand at the moment, we are waiting for judgment. And, obviously, you all understand that as I am waiting for judgment, I’m not going to say anything about the facts or the merits or anything of that sort. But the extraordinary thing that we achieved was that the judge made available the largest courtroom in our civil commercial courts in London. He limited us because of social distancing to five people in court at any one time on each side, excluding the judge, his clerk, the usher and various tech people who looked after the technology and the rest of us, about 10 lawyers plus clients, even more people on each side, we all Zoomed in to the case.

If you’d said to me in March, “This is what we were going to do,” I would have said to you it was impossible. We got to June and it happened and it worked. We got through to the end, we finished on the very day that we’d predicted we’d finished. The judge controlled the proceedings very, very tightly. There was not a single document in court. So the old days of having huge numbers of files and thousands of documents—everything was done on the magnum documents facility system that many of us are familiar with. And we used Zoom as the means of us coming into court when we weren’t physically present. It was all done through a very empty London. And so actually the biggest challenge we had was arranging food at lunchtime.

And I would say that, on the whole, this worked extremely well, far exceeded expectations. It took a lot of preparation. There was a cost to it. But we got through it. Now, the only reason I think why, in this case, a fully remote hearing would not have worked is because it was necessary to undertake what one might call vigorous cross examination. Some of the witnesses were in the witness box from four to six days. Others were in for only half a day. And I think that judging in common with the parties was keen given the seriousness of the allegations and given the amount of facts that were in evidence that he wanted to see the witnesses in person. There were three witnesses based overseas. They could not have come into London to give live evidence because they would have spent 14 days isolating. But otherwise the vast majority of the witnesses came into London in-person and only one, a very minor witness I think was cross-examined over Zoom. So for me, a very big thumbs up, but you do need time to arrange this. You do need to be ready to pay for this sort of case, the extra costs that having us all Zooming in involves, but at the end of the day as a process, it worked extremely well. And thank goodness, we didn’t have a third adjournment.

On Cross Examination

Jamie Gorelick, Partner, WilmerHale; former deputy attorney general of the United States

It is harder to do cross examination. I mean my colleagues are unanimous that not being in the same room as the witness has just made it way more difficult. Witnesses in their homes, or even in conference rooms, themselves don’t have the same level of formality as when they’re on the witness stand. They are much more likely to stray away from the questions and it’s really harder to interrupt and to control them. And judges really have to adjust to this and not all of them have. One expert witness told us that he prefers to testify remotely because he can filibuster on a cross and not give the examining attorney a chance to interrupt him on video. And it’s more difficult to read a witness’s non-verbal cues when you’re examining virtually. …

Also, it does take longer for a virtual cross, but we end up in most of our courts with time limits on the whole case. So, if it takes longer, you’re eating into your own time. I want to say one word just about technical glitches. All of us have experienced technical glitches but we had an in-person bench trial where our site and expert who was Zooming in from Europe because he couldn’t travel to Texas due to the pandemic. So he had to testify remotely, but the delays in the video and audio transmission, the stopping and starting of the proceedings, the need to get IT staff, it just didn’t… That sort of hybrid really didn’t work. You had a courtroom full of people waiting for the technology to get fixed. I think it’s very important that courts have equal ground rules that apply to all sides. Either all the witnesses are in person or all the witnesses are remote.

The bottom line of all this is that the logistical challenges really require careful planning. And we have done all kinds of things. We’ve had many, many virtual trials now over the last eight months, how the witnesses is going to testify, where he or she is going to be, how the graphics get presented, what is the role of the technical professionals, do you have to get your documents physically to people, can you fix mistakes on the fly, and so on. We are learning a lot about how the intersection of rules of the court sets and the technology affect the outcomes.

Online Courts: Perspective from the Bar and the Bench (Full Recording)

On Oral Argument

Kathleen Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan; former dean, Stanford Law School

In many ways, oral argument is much more transferable to remote formats than trial is, because after all oral argument is a constrained finite time period in which you have a small cast of characters assembled, usually just a few advocates and a small multi-member bench in our appellate courts. And it just doesn’t involve the logistical challenges of live trial with witnesses. So it ought to be transferable, but I would note two gains and two losses.

Let’s start with the losses. First, there is the loss of formality, or to quote from Richard’s wonderful paper, “majesty of the courtroom,” the sense that you’ve come in, you all rise for the berobed judges who sit elevated above the general audience and above the lawyers. The lawyers stand before the judges. The bailiff cries the court. There are guards at the door. It has a sense of enormous seriousness and the formality and majesty gives, I think a lot of comfort to litigants that their case is being seriously entertained. It’s not just a day at the office; it’s a major public event. …

The second loss is of spontaneity. In an oral argument, the fun part of oral argument is what I think of as jazz. It’s all about improvisation. It’s all about doing the music you’ve rehearsed so well, thinking very much of David’s background here. You do things in an order as they come up. It’s a conversation with judges where you have to improvise and respond to a spontaneous sequence of questions where there are interruptions. There are no interruptions to them now, or if there is an interruption that’s awkwardly overcome quickly while one judge defers to the other. And so that sense of engagement and spontaneity where you think you might change minds in the heat of the moment is gone.

On to the gains, the first big gain is efficiency. It is obviously enormously efficient to be able to Zoom in. Courts theoretically have many more oral arguments per sitting and accomplish the moving along of the caseload. I think the biggest concern in American appellate courts is the length of time from filing to disposition, which is unpredictable and varies among courts and takes a terribly long time with written opinions. You could theoretically have much more efficient processing of appellate matters if you use Zoom arguments, because you at least decrease the wait time for argument. And I think that could be a source of future gains.

And the second gain is coherence. What you lose in the spontaneity of argument, you gain in the kind of orderliness of the questions. Rather than jazz we have a kind of conducted chamber music where the presiding judge makes a lot of efforts to make sure that each judge has a chance for his or her questions to be answered. It’s highly formalized at the US Supreme Court where the chief justice of the United States asks each justice in descending order of seniority to ask a question. And of course, famously justice Thomas, who hasn’t participated in the free form arguments, asks excellent questions now and some people like that sense of orderliness that come with the questions. So I think appellate argument and legal argument in the district courts has adapted well to Zoom, but I think the questions to ask going forward is could the technology be used for greater efficiency? And is there a downside to not having that sense of live interaction with the decision-maker, which gives authority to the judgments of the court?

On Young Lawyers and Access to Justice

Leonora Sagan, Barrister, Fountain Court Chambers

With respect to the elevation of junior lawyers, the efficiency of legal teams during the pandemic cuts both ways. Because all of a sudden, overnight, when you only have one advocate being spot-lit, the teams sometimes become invisible. Quite literally the junior lawyer who would have been physically present with you in the courtroom, who the bench can see and the client can see, has become invisible. So we have to become more creative about the ways that we become visible and the ways also that we network. Because outside of just the hearing for junior lawyers, that challenge of building rapport, of building long lasting connections has gone really. You don’t have the walk to court with your leader, you don’t have the lunchtime chat with a solicitor, you don’t have the client meetings. And that can be very difficult when you’re actually trying to build the career. How do you get rapport? How without a physical presence do you build that community of lawyers who’s going to be your support network? …

But there is reason for optimism. I think I tend to side with Richard Susskind that the greatest opportunity here is about access to justice. And, at least in the UK, what I’ve noticed is that in the criminal sphere, there are some real opportunities here. When we’re talking about access to a system that’s intelligible and affordable and accessible and where the stakes are loss of liberty, I think we can really start to be super creative about where we take this in the future. So to give you a small example, at the moment I’m representing a defendant in a market of use prosecution. And only because of the pandemic, all of the preliminary hearings have taken place remotely but the absolute assumption in the UK courts is that even preliminary hearings in the criminal sphere will take place in person. Now, that strikes me as, to some extent, a lack of imagination. In this case, we have three defendants, eight counsel, living quite far apart, and many, many preliminary hearings, some of which take 10 minutes. So you turn up to court having traveled three-and-a-half hours on a train as a defendant, you’re already nervous, potentially vulnerable if you’re a minor or if you are otherwise vulnerable mentally. And it seems to me that the biggest opportunity is that if this pandemic can shift the paradigm, so that at the very least just the assumptions we make as to what hearings can take place remotely and which need to be in person, we’ll actually be doing quite a bit better than we have been. And I’m not going to touch virtual juries because that’s a whole nother debate!

Perspectives from the Bench

The following excerpt is from a virtual Center on the Legal Profession event—a book talk on Richard Susskind’s recently published Online Courts and the Future of Justice (Oxford University Press, 2019)—that took place on April 23, 2020. At the event, Ralph D. Gants, the late chief justice of the Massachusetts Supreme Judicial Court who sadly passed away this fall, offered commentary on how courts were managing the move to remote spaces in the midst of the pandemic and what it portended for the future from his perspective as a justice. The Center was proud to posthumously award the Chief Justice its 2020 Award for Professional Excellence in November 2020. The full recording of the April 23, 2020 event can be found below.

On Online Courts and the Future of Justice

Ralph D. Gants (1954-2020), Chief Justice, Massachusetts Supreme Judicial Court

I want to thank Professor Susskind for his fantastic discussion. I have little doubt that over the course of time, the issue will not be whether we will have online courts, but how they will work, how extensive they will be in terms of the scope of matters they will address, and when they will become part of the norm in many, if not most, of our justice system.

Let’s focus right now on the civil. I think Professor Susskind mentioned that the criminal raises separate issues. I certainly think it does. When he speaks about civil, he is speaking really about smaller-dollar or other types of disputes in which there rarely are attorneys, or at least not attorneys for both sides. Let’s discuss those matters.

I certainly agree with Professor Susskind that it would be a sad situation indeed if our court system became unable to address smaller-dollar types of cases. I think, right now, it is fair to say that in most of The United States—perhaps most of the world—there really is no particular recourse for anybody who has a small-dollar claim, except for maybe going to small claims court. The fact of the matter is we need for there to be an effective and efficient way to resolve those disputes at low cost and, generally, without the benefit of counsel.

There are three types of those disputes which occur in our courts, and, I think, probably in most of the courts around the country and around the world. The first is what I’ll call the small-dollar disputes, which often are disputes that are resolved in either our small claims court or in district court. The second type of matters are family court matters involving issues of child custody and alimony, in which it is relatively rare for both parties to have counsel. The third type of disputes are housing-type cases, basically eviction-type disputes.

The small-dollar disputes arguably can be resolved by alternative dispute resolution outside the court system if the parties agree, because there is no necessary need if the parties agree to resolve it that way for a court to be involved. But courts need to be involved with regard to matters of family law, and courts need to be involved with regard to matters in terms of eviction of tenants from their homes or the foreclosure of individuals from homes that they previously owned.

I am extremely interested in the formulation that he designed. I think in terms of the “how,” I will mention that I’ve got various concerns, which is why, at least in Massachusetts, I have asked our Access to Justice Commission, which I co-chair, to take a look at the “how” before our court system does. Because I am extremely concerned that if we do it, we do it in a way that is respectful of the needs of all litigants and does not place individuals in situations in which they’re going to be taken advantage of.

Let me speak of some of the concerns that I have, and I will invite Professor Susskind to respond to them. I have some concern with the asynchronous nature of judging—that is the idea that we’re going to be essentially judging based on the papers. I have concerns, especially with regard to the smaller claims. … It may not be the case in the U.K., but it certainly is the case in the U.S. that most people can’t write very effectively. They cannot articulate either the facts or their understanding of their argument very well in writing, and that it is only when they are allowed to present their arguments orally that they can become more articulate and better understood. So I do worry about a system, which may rely entirely on written submissions because I think a fair amount will be lost, especially for individuals who are not so well educated or perhaps not so well spoken in the language of their nation, in the U.S., of course, being English.

Online Courts and the Future of Justice (Full Recording)

And, indeed, although he may praise those supreme courts, which are deciding matters on the papers, at least my court really does not like to decide matters entirely on the papers because there is enormous benefit from oral argument. Now, of course, on the Supreme Court, we deal with cases which, by their very nature, are matters which involve complex matters, often changing and evolving issues of law, sometimes issues where there are conflicts among our courts.

But the fact of the matter is oral argument helps us to decide the case more wisely. Even though we have excellent briefing by quite able attorneys, I will say that in roughly 20 to 25 percent of the cases, the oral argument changes something about where I am in terms of the decision. It may not change it from thinking that the defendant will win versus the plaintiff, but it may arguably change part of how I believe the case should be decided. And that’s in cases where we already have well-presented written arguments and still are able to flesh out ideas or facts or concerns that may not have been articulated that well in writing. So I have some concerns about the reliance entirely on the written submission as the basis for deciding.

I also have concerns, as he does, as to what I’ll call the asymmetry of knowledge and skills. About 40 to 50 percent of the small-dollar disputes in Massachusetts courts involve debt collection, and, very often, those debts are debts which have been purchased at two or three cents on the dollar by debt collection agency taking debts, which have not been collectible. They then go to court and they seek to collect them. Even if they collect only a small share of them, since they paid only two or three or four cents on the dollar, with regard to those claims, it is still economic for them to present those claims in court.

When individuals have lawyers, it turns out that those debt collectors very often cannot prove that they actually own the debts because they purchased them in a securitized debt package. Appendix A may identify all of the debts they purchased, and more often than not, no one can actually find Appendix A and be able to prove that the debt, which they’re seeking to collect, is indeed the debt that is owed. Very often, the debtor may not even know who the debt collection agency is. They may have gone to Best Buy and purchased a TV system, but it may not be Best Buy who was actually presenting that particular claim. The claim may have been sold to a debt collection agency, and it may be somebody who they have no clue who it is.

So I do worry to some extent about the ability of those individuals to understand their rights well enough to be able to defend them in a court of law. Again, professor Susskind has recognized this particular concern in terms of making sure that there is adequate understanding of the law. But, again, there is concern about people’s ability to read and understand the written word in terms of understanding their rights.

There also are issues, certainly in Massachusetts and I think in many countries throughout the world, with regard to language access. We have probably about a hundred languages spoken, even in our Massachusetts courts, and the capacity for individuals to be able to have the translation of the written word and the interpretation of the spoken word is an important part of all that we do. Finally, when we do it—and as I say, I do think the question is not going to be whether but when—it will have to be accessible, essentially, through a smartphone. Virtually everybody, at least in this country, has access to a smartphone, but not nearly as many have access to computers. So a system which is going to be relying upon computers is not going to be nearly as accessible as those which rely upon a smartphone or the means which individuals can do to text or what they’re familiar with in terms of the presenting of arguments.

Again, I think it will happen. I am concerned that it happen in a manner that’s going to be respectful of the interest of all litigants and not put any at an advantage or disadvantage because of issues of education, language, access, or other concerns.

Let me speak for a moment about where we are because this goes to the question of when. I think it is fair to say that the resistance to online dispute or virtual resolution of disputes has changed dramatically over the course of the last month and a half. My courts are, essentially, physically closed. Virtually all that is being done, is being done virtually. We’re proceeding virtually with an IT system, which is less than we otherwise would have hoped for. We are improvising in all sorts of imaginative ways. Many of our courts are becoming Zoom courts. We are hearing emergency hearings with regard to individuals who are in custody, who are seeking release because of the dangers of being in a jail or prison during this period of time. We’re holding literally hundreds of those hearings, and they’re being handled either by telephone or by Zoom or through some other virtual way.

We are doing things that we have never done before because we have no other choice, but I think the fact of the matter is that we are discovering that a fair amount of this stuff works pretty well under the circumstances. I think it is also fair to say that when this ends—and I don’t know when it will end, but the one thing that I am certain of is that we will not be going back to where we were on March 1st when the pandemic ends.

I think you’re going to see courts having more and more matters handled remotely. I think that although Richard focuses on the fact that that is still essentially the old way of doing things in a somewhat different format, the capacity to be able to require individuals to come to court less often will make an enormous difference in terms of reducing the cost of litigation so that more people can afford to have lawyers involved in the matter—because the matters could be handled more efficiently if they don’t need to come to a physical courthouse—and for individuals representing themselves to be able to reduce the number of times they need to come to court can make an enormous difference, for those individuals who are struggling to come to court because of problems in terms of their jobs and their responsibilities at home, either with regard to elderly parents or with regard to children.

To the extent that we’re able to handle many more matters remotely than we are now, which I think will be one of the consequences of this pandemic, I think it will substantially change our ability to handle various matters more efficiently than we do today.

 


Ralph D. Gants was the chief justice of the Massachusetts Supreme Judicial Court. In a recent virtual event in November, Chief Justice Gants was posthumously awarded the Center on the Legal Profession’s Award for Professional Excellence, accepted on his behalf by his surviving wife, Professor Deborah A. Ramirez. For more on Chief Justice Gants’s life and celebrated legal career, see Harvard Law Today’s obituary here.

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Special Issue • December 2020 Special Issue • December 2020

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