Recently, I came across an article on Lawyerist.com entitled “Is Digital Court the Wave of the Future?” The article takes the position that improvements to Internet speed will eventually enable judges, lawyers, and interested parties to seamlessly hold court via digital videoconferences, but I’m not sure that this is such a good thing.
Not only does the author conclude that digital court is possible, he also maintains that digital court is preferable to modern, in-person proceedings. The notion seems shocking to me, and since the article was written in 2010, I did some research to determine whether anyone else had considered this topic. Having found nothing, I will address the arguments made by the author and introduce my counterpoints in favor of keeping hearings and court in its current state.
The author’s first point is that federal courts already use an electronic filing system (you can look on PACER), and that electronic advocacy is the next logical step. He discusses the various advantages of e-filing, including the cost savings aspects as well as noting that some state courts are also considering e-filing. In a similar vein, the author also points out that some courts permit lawyers to appear by phone and that depositions may also be taken by phone or through video conferences.
Next, the author mentions that a number of non-dispositive motions typically involve only the presiding judge and the attorneys for the interested parties. He then asks his readers if there is really any need for the necessary parties to be in the same room since the judge would still be allowed to ask questions in a digital hearing, and the attorneys could still scrutinize one another to look for weaknesses.
The author’s final point concerns the financial benefits to converting the courtroom to a digital platform. In short, no travel means fewer expenses for lawyers and judges, and no physical presence means there would be no need for security or bailiffs, all of which would act to drive court costs down and increase the citizenry’s access to the justice system.
The author concedes that the upfront costs of purchasing super-fast Internet (when it becomes available), high definition cameras, and outfitting offices (and judges’ chambers) to be online conferencing-capable would be expensive, but he is adamant that firms and clients will save money in the long run. He also acknowledges that digital courtrooms could make adjudication less formal, which may lead to sloppy lawyering; and he similarly recognizes that converting the courtroom to a digital platform would prevent the sort of public access to hearings and trials that the public usually enjoys. Ultimately, the author concludes that the positives outweigh the negatives, and he asserts that digital court may be arriving sooner than later.
I agree that it is important for lawyers to mitigate costs, especially in the wake of the Great Recession. Folks deserve access to the legal system, and legal fees should not act as a barrier to legal services. However, I think the author’s position relies too heavily on cutting costs and places convenience above practicality.
Let us begin with costs. In the introduction to the article, the author says that Google has been working on a fiber optic network that would increase Internet speeds by a hundred fold. Now, the article was written four years ago, and since that time Google has gotten Google fiber up and running in a few cities. Only residential pricing appears to be available, but the price is significantly higher than AT&T, who currently offers high-speed Internet for $25 a month, and Comcast, who charges $40 a month for high-speed Internet.Admittedly, I am not an economist, and I do not know what formula, if any, is used to calculate the increase in price as Internet speeds rise, but I find it difficult to believe that an such a superior product will not fetch a premium price–not to mention that video-conferencing equipment is remarkably expensive. Perhaps large firms will benefit enough from reduced travel to offset these costs, but it seems unlikely that boutique firms and solo practitioners with fewer clients will realize such compensation. At the end of the day, any increase in costs for the attorney will lead to an increase in costs for the client.
I also take issue with author’s position that there is no difference between arguing in person and doing so via videoconference. I spent last summer working for a judge, and I am currently working for another. I have had the opportunity to observe several full-scale trials and countless hearings, and attorneys are on an island when they are in the courtroom. Even if an attorney has been to a particular court before and argued before a particular judge, the courtroom is the judge’s domain, and an attorney is on his own once the proceeding begins. The courtroom is a great equalizer in that every attorney must rely on his own preparation and wit to advocate for his client. Eliminating that level playing field may create too great an incentive for abuse and sloppy lawyering, which will lead to potential inefficiencies in the justice system and cause harm to clients.
My final criticism is predicated on a hypothetical, and that is what if videoconferences are permitted in lieu of actual trials? The accused is guaranteed the right to confront his accuser in court, which is an emotionally powerful encounter for both parties. Is the accused exercising his right to confront his accuser and the witnesses brought against him if he is never in the same room as those people? Such insulation for the accuser could even lead to an increase in false-accusations or false testimony from witnesses who do not have to cope with face-to-face interaction. Additionally, how would such a system work with jury trials? Must all the jurors report to a particular location to then sit together to essentially watch a television program-like proceeding? Too little of the real thing produces the risk that the proceeding does not feel real at all, which once again will harm clients.
I am part of the generation that grew up with the Internet. I use the Internet everyday for a variety of purposes, but I do not think that an Internet platform should replace the courtroom. I think that the risk of abuse, sloppy lawyering, and the deprivation of due process are significant enough that they outweigh any cost-savings argument. Technology will undoubtedly change the legal profession, but the courtroom should remain sacred.