To suggest the pandemic of 2019-20 has been a disruptor is to create a new level of understatement. It has disrupted virtually every aspect of human interaction. And of course, humans being, well, human, interaction often leads to… court proceedings.
In Arkansas, only emergency court proceedings were held in person for roughly two months between mid-March and mid-May. While many jurisdictions experienced some case backlogs, those courts already practiced in using e-filing and platforms for virtual proceedings were able to navigate the changes and more quickly ease those backlogs.
The adoption of technology in Arkansas courtrooms varies by jurisdiction, as do the procedures by which each circuit will operate. Ultimately, circuit judges in the state are given wide discretion as to the operation of their courtrooms, and some judges are more comfortable with technology than others. The latest bench card from the Arkansas Supreme Court related to guidelines for in-person court proceedings in the state, issued Aug. 25, stated that video conferencing remains the preferred method to conduct most proceedings. But it did not issue a mandate.
Hadley Hindmarsh, family law attorney and attorney ad litem based in Rogers, said that circuit judges in Northwest Arkansas try to maintain consistency within their jurisdictions, but it still boils down to which judges are more comfortable with technology.
“Some are more comfortable with videoconferencing hearings than others, and some are more willing to allow Zoom testimony by non-party witnesses at an in-person hearing where the parties and attorneys are required to attend,” she said. “In other words, practicing in some courts means greater risk depending on the personal view of the judge as to the efficacy of video conferences at all, and whether the matter is contested trial or a routine status conference.”
In addition to the convenience afforded by videoconferencing in cases where it’s not necessary to conduct a proceeding in person, not to mention the decreased risk of exposure, Hindmarsh sees other benefits.
“I’m also having to really think through the home-visit needs for my cases and rely instead on calling a parent and having them — or my child client — walk me around the house using FaceTime, Google Duo and occasionally Zoom,” she said. “This works pretty well and is something I’ll keep around as part of my tool bag because I can do a pop-in, an unannounced or short-notice home visit much more easily and affordably because I’m not driving to their home and hoping they are there.
“While unannounced visits are not always necessary in my ad litem cases, they are an important tool when significant allegations exist between the parties regarding the home environment, substance use, etc. When allegations of substance use or domestic violence/erratic/threatening behavior exist, doing a pop-in visit virtually also feels a lot safer for me personally.”
Hindmarsh estimates that roughly 75 percent of her meetings now are held virtually or over the phone. For status hearings and other “simple matters” that don’t require the presentation of evidence, she thinks judges already find videoconferencing easier, faster and cheaper.
“The cost advantage is really to the litigant because their attorney doesn’t have to drive to a courthouse and sit around waiting for an hour or more to be called in for a 10-minute hearing,” she said.
Attorney Keith Morrison, Fayetteville-based partner with Wilson & Associates, sees the biggest continuing impact of the virus to be on proceedings that would normally involve multiple people such as jury trials. The Arkansas Supreme Court lifted bans on in-person proceedings and jury trials, so long as they’re conducted in compliance with Arkansas Department of Health directives. So, again, it boils down to jurisdictions.
“Case backlogs have occurred, but the various courts seem to be coping well as they try and catch up and maintain their dockets,” Morrison said. “I predict that some types of cases will be given lower priority, and thus those parties will experience some delays. Others will be given priority and handled this year in more efficient ways.”
For Hindmarsh, the transition to virtual court wasn’t hard but did require small investments of time and money.
“I spent about $400 on a better clip-on camera with an integrated microphone for my laptop, a lighting ring and additional clip-on microphones for anyone who might be with me in the office for a videoconference or hearing. And the difference in my participation, the quality of my audio/video on the court side and my interest in using videoconferencing increased. Add three to five hours of time searching up lighting/makeup/dressing tips for Zoom, and voila! I’m in it to win it.”
Morrison points out that ultimately, many proceedings simply don’t require in-person appearances.
“Use of remote technology saves time for all concerned and has appeared to fit the preferences of many judges,” he said. “I suspect there will be some systemwide changes and that individual judges will embrace this technology over time.”
Hindmarsh said for these changes to become permanent, reliable, high-speed internet will have to be made accessible throughout the state. And she noted that continuing legal education will need to focus on improving virtual practice skills.
“Use of videoconferencing may also be something that fades over time and then returns as attorneys, court staff and judges become more familiar with videoconferencing, become more comfortable with communicating in that fashion and obtain better AV equipment and software to smooth out the difficulties of conducting certain types of hearings in a virtual fashion,” she said.