Leaders of municipal state bar organizations and Texas federal judges who spoke to Law360 reflected on what's worked well and what hasn't — remote depositions can save attorneys' time and clients' money, but the idea of jury trials by Zoom, both civil and criminal, has met resistance. The numbers from the state's Office of Court Administration tell a stark story about trials: pre-pandemic, about 186 jury trials took place in Texas every week, but from March 2020 through January of this year only 222 jury trials took place statewide.
Lawyers and judges predict the efficiencies of conducting most hearings remotely will outweigh nostalgia for the days when every proceeding required a trip to the courthouse and that the imperative of embracing technology while the virus raged bodes well for jurists' continued acceptance of the benefits it can provide.
"There's a great line from a novel to the effect that 'the future keeps arriving,'" said U.S. District Judge Lee Rosenthal, chief of the Southern District of Texas. "That will continue. So, we have to remain flexible. Just as we mastered these technologies and approaches, we have to be open and alert to advances in them that will continue to increase access and allow cost-effective resolution of disputes and honor constitutional requirements of effective jury trials and effective representation."
There are drawbacks, such as the virtual Markman hearing U.S. District Judge Rodney Gilstrap, chief of the Eastern District of Texas, presided over recently, where a lawyer appearing before him was dressed in a suit and tie, seated at his kitchen table.
"And all I could see was the family cat walking up and down behind him," he said. "There are just too many distractions and too many interruptions. It works in a pandemic when it's 'Do it that way or bring it to a screeching halt.' But it's not optimal."
Yet there are bright spots. The technology utilized in the pandemic era will help courts dig out from under the litigation backlog caused by the coronavirus, said David Slayton, administrative director of the OCA. And it's also shown how to increase the public's access to justice.
"It was not uncommon before the pandemic to have a default or non-appearance rate of 70% to 80%," Slayton said, noting that rate applied to eviction cases, child support hearings and traffic court. "And we've seen that literally flipped on its head — 80% of people are now appearing in those cases."
That increased access to the courts has been a "silver lining," Slayton said, and has also meant that judges are getting more evidence, more testimony, and are therefore able to make better decisions in adjudicating cases.
While most of Texas' roughly 3,000 state-level judges have embraced remote technology, the constitutional concerns from litigants about conducting criminal jury trials by Zoom has created a major backlog without a simple solution.
"There's been some additional resistance to that than we might have expected," Slayton said. "Obviously, we want to make sure people have the right to confrontation … but people are sitting in jail. Our hopes were that more would engage in [virtual jury trials]."
There are some criminal matters that have a virtual upside, said U.S. District Judge Barbara M.G. Lynn, chief of the Northern District of Texas.
"I've actually been surprised that some sentencing proceedings I think are better virtually than in person," she said. "The defendant is closer to me, I can see the defendant better, the defendant can see me better … plus, I have found, it seems to me, many defendants are more comfortable speaking to me when I don't look so scary as I do in a great, big courtroom on the bench."
Judge Lynn said for civil matters, she sees virtual hearings in discovery matters, or hearings where "the credibility of a witness is not an issue," sticking around after the virus is gone.
"When credibility is not an issue, I think this technology works very well and more efficiently and more conveniently," she said. "I have a much more positive view of it than I would have imagined."
Bench trials, hearings, depositions and client meetings all lend themselves to virtual proceedings, said Houston Bar Association President Bill Kroger, a partner at Baker Botts LLP.
"Going to the courthouse, with security and all that, it can take an hour to go to the courthouse and be heard and an hour to go home. It can disrupt an entire morning," he said. "When you do it on Zoom, it is very efficient. Because depositions and client meetings work so well, I don't think our clients are going to be flying us as often as they used to."
The client reaction and the client push to save costs through the use of remote proceedings is something Dallas Bar Association President Aaron Tobin, a partner at Condon Tobin Sladek Thornton Nerenberg PLLC, said he'll be keeping a close eye on.
"I think it'll make the consumer of legal services have a more efficient, cost effective solution," he said. "And I think there will be more demand for lawyers in some cases that you just couldn't approach from a cost standpoint before, that have more flexibility now."
Remote hearings have also helped erase geographical boundaries in Texas, said president-elect of the Hidalgo County Bar Association, Rick Zuniga of Atlas Hall & Rodriguez LLP. More attorneys from Dallas and Houston have been appearing virtually for cases in The Valley, he said, which could have an impact on the need for partnerships with local counsel that have been commonplace.
"My firm generally handles cases from Laredo to San Antonio to Corpus Christi. But this changes things," he said. "I've handled cases in El Paso recently and there's no reason I'd ever handle a case in El Paso prior to the pandemic. If [remote hearings] continue to be an option, I think you're going to see specialty lawyers practice outside their general geographic region without the aid of local counsel."
A return to pre-COVID-19 normalcy isn't likely in the immediate future, Judge Rosenthal said in urging collaboration between state and federal courts on different approaches to administer justice.
"It is important not to lose sight of the fact that what the pandemic did is simply accelerate our acceptance of advances in technology. Those advances will continue," she said. "We know that change will come, and we don't have a precise picture of what it will look like, but we know more than we knew before that we as an institution and as individuals can adapt."
--Editing by Alyssa Miller.
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