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Law360 (December 2, 2021, 4:55 PM EST )
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| Judge Matt Williams |
King County Superior Court Judge Matt Williams has been a leading voice in embracing Zoom as well as creating guidelines for distanced in-person court hearings, and has spoken on panels on the topic alongside federal judge and fellow virtual-trial leader Marsha Pechman.
Judge Williams told Law360 recently that pandemic or not, virtual trials are not going anywhere — and lawyers will have to adjust.
This interview has been condensed and lightly edited for clarity.
How do you handle remote trials in your court?
We have 54 Superior Court judges here in King County. We are the largest court in the state; we are the 15th largest court in the nation. And back when the pandemic began, we realized we couldn't just stop serving the people. We had to figure things out.
The biggest challenge, of course, with jury trials isn't the trial itself. The problem is jury selection. In this courthouse it'd be about 300 people. They'd sit there for two days waiting for the judge and the lawyers' convenience to call them into the courtroom, and then they'd spend about 90 minutes doing voir dire with a panel of 50 people packed into not only the jury box but also packed into the gallery, sitting shoulder to shoulder. And that's a significant challenge.
So working with members of the criminal bar, both prosecutors and defense, but also in great depth with the civil bar, the idea was let's take that densest part of trial and let's see if we can move all of that so that it's either virtual or remote.
No one is ever excluded because they don't have sufficient technology or access. If they don't have Internet access, then we would have to do it old school. Either we will schedule you for [an in-person] panel, or if you feel that you have an opportunity to go to a local spot, like a library, we can set you up on a [virtual] panel today or tomorrow. We essentially put people exactly back in the spot they would have been without the use of technology. So we don't exclude anybody.
In figuring out remote trials we had to MacGyver solutions together. It's kind of like that movie 'The Martian,' where you face a problem and then you solve it; OK, now you face the next problem and you solve that one; then you face the next. Our new judges, when they first try a case, the first one's just hard, because it's an incredibly steep learning curve.
What have you learned?
The challenges we've found are completely different from the ones we expected to. And many of the urban legends and the fears we found out were not only not reality, but the reverse is true.
As an example, there was a fear that the digital divide would reduce the diversity of our jury pools. What we found out was, by building an inclusive process, it made it easier. Instead of having to take two days off of work, a person that was really suffering because of the economic climate, they could afford to take a 90-minute break, go sit in their break room at work, and participate in the process of voir dire. So what we found was that the diversity of our jury pools — and, interestingly enough, then of our juries as well — increased dramatically.
The second fear was, well, the jurors won't pay attention because they're distracted, or you can't tell if they're distracted or not. Well, in a virtual proceeding, if I wanted to make sure you're paying attention, I can zoom in on each person. The job of the judge now is harder. You gotta be paying attention to your jury, see where their eyes are going.
The jurors who have done both in-person trials and virtual trials uniformly report they are better able to make credibility determinations because they're not sitting 40 feet away.
Is it a different skill set for lawyers?
It does require a different skill set. The skill set of coming into a courtroom and filling it with your personality, that skill set is less valuable in this context.
And, in fact, I've had five female attorneys specifically comment that they felt that the use of the remote technologies leveled the gender playing field because it took away that sort of dominance [by male counterparts].
I've had jurors in the context of their deliberations say the same thing: that the deliberations were more measured, more fair, with everyone having a chance to speak, rather than it being dominated usually by someone who identifies themselves as male.
In a remote proceeding, we're talking and you're watching my face and we're about 3 feet away from each other — about 3 feet on my end, a foot and a half on your end. You can see my eyes, you can see the microexpressions. I can see your eyes, I can see what your eyes are doing.
The lawyers who succeed in this arena are the ones who are hyperprepared. Just like a TV show, you manage the entire visual that the jury gets. And if you're smart, you understand the intimacy of the platform.
Is King County planning to keep using remote trial proceedings into the future?
We're going to try. We got to this place because we were forced to, but along the way we learned some stuff. Throwing away that knowledge base just because it's different from what we thought and what we're used to would be foolish.
The National Center for State Courts Joint Technology Committee, back in April 2020, issued this very short bulletin [about remote hearings]. It essentially says, and I'm paraphrasing, after the pandemic is over it will neither be feasible nor practical for us to return to pre-pandemic norms. And I think that comment is prophetic.
Look, the reality is, we have these huge attitudinal barriers, and those exist on a couple of fronts. We all want the pandemic to be over. We're just tired. We want it to be done. There's good news and there's bad news here. I can tell you this with confidence, the pandemic is over. It is. We are now in endemic. Welcome to the way things just work now.
We have to be thinking about not only COVID and the infection rates of COVID and what's going to happen, but after COVID there will be the next thing and the next thing.
There are other forces [at work here] that are so consistent, they're so innate, that they require no positive energy from anyone to drive them forward. One of the most powerful of those forces is economics.
From the lawyers' perspective, it boils down to this. Virtual trials are cheaper. And that's what drives the train. The economic forces, they will drive that. The social forces, more diverse jury pool, that will drive that.
Is it going to change next year? No. Five years? A little bit. 10 years? More so. I predict that within 20 years, in-person jury trials for civil cases will be more the exception than the norm.
When the iPhone came out, I thought anyone that got it was crazy. Try to find anyone now that has a phone with buttons. I love trying cases; I love being in the well; I love that moment when you can reach out and touch people's minds. It was magical for me. But that's not how this works. And what's going to change people's minds is not going to be presenting logical arguments; it's going to be one of those forces.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
