"I think the default ought to be online proceedings," Judge Donato said, noting that a "silver lining" to the coronavirus pandemic is that courts have successfully adopted online video technology that allows attorneys to participate in proceedings remotely instead of flying in from all over the world.
"I think it's huge. I think it's revolutionary," Judge Donato said of moving court hearings online during the pandemic.
Judge Donato, who serves the Northern District of California, announced during a status conference last week that he had no intention of resuming in-person status conferences in most of the cases he presides over. On Tuesday, the judge told Law360 that he "absolutely" also supports moving motion hearings such as summary judgment and dismissal bids online post-pandemic.
"It's hard for me to see why we wouldn't be able to do this," Judge Donato said, noting that the remaining obstacle is the federal judiciary.
"Nationally, the federal judiciary has been extremely conservative — and, in my view, behind the times a little bit — in improving public access to courtrooms through television and ... real-time video," Judge Donato said.
But the judge said there's no reason the federal judiciary should not be taking advantage of the internet and moving more proceedings online.
Judge Donato said there are committees at the Administrative Office of the U.S. Courts that address these types of issues and that he's been talking with other judges about "sending some letters" advocating for online hearings to continue after the pandemic.
"I really, really hope, and I know many other judges do too, that we have a different world at the end of the pandemic that isn't as restrictive as the one that we've struggled with," Judge Donato said.
While federal courts are now operating under special pandemic procedures that include a temporary suspension on the ban on televising proceedings, there remain national policies around televising proceedings that will have to be addressed going forward, the judge said.
Assuming the nationwide ban on televising proceedings in federal courtrooms is ended, Judge Donato says he thinks it would then be up to each individual judge to decide whether they want to hold proceedings online.
Judge Donato, a native Californian, said that back when he was in private practice with an office in San Francisco, almost all of his cases were in other states, and often in places not served by regular nonstop flights. He recalls spending days traveling, only to spend less than an hour before a judge.
"So that's a lot of time out of the office, away from home, away from your family, for a court conference that takes maybe 30-45 minutes," Judge Donato said.
Judge Donato also highlighted the opportunity that remote hearings present for reducing carbon emissions stemming from attorneys endlessly zipping around the world.
"It's also a great mentoring tool," Judge Donato added. "I mean, just think about all those great associates who never get to go to court because you can't drag someone out 3,000 miles from D.C. or New York to San Francisco for a 45-minute hearing. Now they all get to stand in their office and watch."
He said that before COVID-19, he and every other judge he knew were conducting court entirely in-person. While it's always great to see people in person, the judge said, that doesn't outweigh the benefits of holding court remotely.
Judge Donato said he doesn't see a downside to online hearings and conferences. While some people were initially panicked about "Zoom-bombing" — a practice where hackers disrupt calls on the videoconference platform — the judge said, "knock on wood," that hasn't been a significant problem.
Judge Donato said that before the pandemic, courts did have a telephone option, but the technology was "bad" and that he preferred not to use it.
The judge noted he may be less comfortable with remote witness testimony, jury deliberations and jury proceedings. He said that while he hasn't tested it out himself, "I already know I'm queasy about it."
While he's not ruling those out, Judge Donato says he thinks being in-person makes a difference when assessing credibility and keeping a jury engaged.
Judge Donato is still working out which hearings might need to remain in-person and which won't. He said that while it's important not to put any party, witness, client or lawyer in a position that might pose a safety risk, it's also the "rock-bottom principle" for the judiciary that federal courts remain public institutions, open to the public.
Getting online hearings to stick will require more than just a couple of judges advocating for change, Judge Donato said, encouraging lawyers, journalists and the public to push for keeping hearings remote even after the pandemic is behind us.
--Editing by Emily Kokoll and Nicole Bleier.
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