'Like Showing Up for Court Without Their Hair Combed': Why Law Students Need to Learn the Etiquette of Virtual Litigation
BY JUDGE JEREMY FOGEL, November 29, 2021
This article originally appeared in Law.com. View the original publication here.
Courts and litigators were forced to adapt, basically overnight, to the previously unthinkable reality of virtual courtrooms. But with remote litigation here to stay, it’s now up to law schools to adapt by preparing students to advocate for clients in a digital environment.
Law.com spoke with former U.S. District Judge Jeremy Fogel of the Northern District of California about the future of virtual courtrooms and how law schools need to be preparing graduates for this “new normal” of courtroom proceedings.
Fogel, who is now the executive director of Berkeley Judicial Institute, draws from his 30 years’ experience as a sitting judge. He served on the Northern District of California bench from 1998 to 2011, as a judge of the Santa Clara County Superior Court from 1986 to 1998 and in Municipal Court from 1981 to 1986.
This interview has been lightly edited for length and clarity.
Law.com: Did you ever think you’d see remote courtrooms?
Fogel: No. We are certainly used to the idea of using video in the courtroom to film proceedings, but I never thought that lawyers and parties would appear remotely.
Law.com: What are the advantages and disadvantages of remote courtrooms?
Fogel: It has made for easier access and appearance rates have gone up particularly in state courts. It has also made proceedings more efficient and less expensive for clients. [Further, virtual courtrooms] have created more transparency since they give the public broader access. The negative side is you lose a certain dimension of seeing someone in person. Judges like being in the same room, so we have lost a depth and quality [that in-person hearings provide].
Law.com: What do you expect for the future of virtual courtrooms? Will these new changes continue?
Fogel: I’m very concerned that there will be an all-or-nothing approach. It’s important to look at the experiences of the past year and a half to assess what was valuable and come up with a hybrid model.
Law.com: How can law schools prepare aspiring lawyers for these litigation changes?
Fogel: Teaching aspiring lawyers to make the best use of the medium is important. This [should fall on] those teaching legal advocacy. So there aren’t really changes in curriculum, but this needs to be addressed in skills-based classes.
Law.com: What should these skills-based classes teach specifically?
Fogel: [The first thing to look at is] how is oral advocacy different virtually versus live. The content is largely the same, but the way in which you communicate is different.
Law.com: What are some of those differences?
Fogel: Things like backgrounds and dress. Advocacy classes have to talk about this, like where is the camera? We’re used to looking at people in the eye, but if I’m looking them in the eye while using a computer, the camera shows I’m looking down. Plus it’s important to keep in mind that where the camera is on an iPad versus a computer differs.
Law.com: What are all the things that have to be considered when lawyers make virtual court appearances?
Fogel: The lighting has to be right. Are there shadows on the face? This is pedestrian stuff, but if they don’t think about it, it’s like showing up for court [in person] without their hair combed. They want to look good. They don’t want things to be a distraction. Wavy backgrounds are a distraction. These are things that law professors need to get students to pay attention to.
Law.com: Is it like teaching skills that were taught for live court but transferring those skills to fit the remote setting?
Fogel: Yes. It doesn’t matter what shoes you are wearing [when remote] but you still have to think about these things.
Law.com: What about standing versus sitting?
Fogel: When standing, people project differently. There are lawyers who are standing even when using Zoom. They just have to adjust the camera but when standing it’s more like a real argument. So sitting is discouraged. People are more [too] relaxed when sitting.
Law.com: How do judges size up lawyers virtually?
Fogel: You really can tell if people take care in how they are coming across. It’s important to put the effort in. These are intangibles that judges pay attention to. After 30 years [as a judge], I developed habits of mind. If someone hasn’t taken care to dress well and present themselves professionally [it makes an impact]. Of course, cases should be decided on the law and facts of the case, so these other things seem unimportant, but they are not.
Law.com: What about the technology itself?
Fogel: [Aspiring lawyers] need to make sure their technology is working, make sure they have enough bandwidth and have backup [plans].
Law.com: What are other things law students need to be aware of regarding remote hearings?
Fogel: With Zoom, something you lose is sizing someone up. What kind of body language are they in projecting within Zoom? They need to not lose focus of all the intangibles. The bottom line for everyone is making sure that video proceedings have integrity.
Everything needs to be done to ensure that remote proceedings have integrity. If lawyers are taught how to succeed in these evolving virtual settings, they can do everything within their power to at very least project the appearance of integrity.
Courts Had an Ethical Obligation to Speak Out After George Floyd’s Death
BY JUDGE JEREMY FOGEL, June 19
This article originally appeared in The Recorder. View the original publication here.
The words, “Equal Justice Under Law” are engraved over the main entrance to our Supreme Court, and since the founding of our nation judges and justices have sworn an oath to apply the law without regard to the characteristics or circumstances of people who appear before them. Yet our history is replete with examples of judicial practices to the contrary, such as limiting jury service to white men and refusing to permit or credit equally the testimony of women and non-white witnesses. And, while most such explicit forms of discrimination are behind us, our courts never have been immune to the effects of systemic inequalities in our society.
The reaction to the killing of George Floyd by Minneapolis police officer Derek Chauvin, an incident preserved for all to see in a cellphone video, continues to have profound reverberations. In addition to generating nationwide protests and a remarkable shift in public attitudes about race and policing, the killing has called unprecedented attention to disparities within the criminal justice system and the deep lack of trust and confidence in that system among African Americans.
One might have expected the courts, which after all adjudicate the cases that arise from that system, to remain above the fray. But earlier this month, several influential state supreme courts, including those of California, Texas and Washington, made formal statements both acknowledging and condemning the persistence and manifestations of systemic racism within their purview. Each of California’s seven justices made a personal pledge to examine and confront the impact of his or her own attitudes and behavior. The Texas Supreme Court emphasized the importance of reaching out proactively to and learning about the concerns of communities of color, and the nine justices of the Washington Supreme Court issued a unanimous statement stressing the importance of understanding and overcoming the effects of implicit bias. Approximately a dozen chief justices of other state supreme courts, representing both geographic and philosophical diversity, made similar statements in their leadership capacity.
Critics have argued that these statements inappropriately involve the courts in political controversy and even could be viewed as impermissible comments on pending or impending cases. Some worry that the courts will favor African-American parties going forward as a way of proving that, in fact, they are not influenced by systemic racism. Having served as a trial court judge for 37 years and having taught and designed courses for judges on both ethics and decision-making for much of that time, I believe that these concerns, while not unexpected, are misplaced.
An African-American judge whom I have known well for many years tells an instructive story. She was the first African-American judge to serve in her mostly white jurisdiction. As it happened, her courtroom staff—court reporter, bailiff and courtroom clerk—also were African-American. During one of her first criminal calendars, a young white defendant entered the courtroom, looked around, said nothing for several seconds and then asked for a continuance. The judge agreed, and at his next appearance, the defendant returned with an African-American lawyer.
Systemic bias is fundamentally different from individual bias. Individuals within an inequitable system can act with the best of intentions and in complete good faith and still not negate or overcome the effects of systemic inequality. The only remarkable fact in my friend’s story is that the only white person in the room—and the person with the least power—was the defendant. The systemic bias illustrated by her example is that, at the time, in virtually every other courtroom, the races of the individuals would have been reversed, and few if any white people would have found the situation unusual. But imagine what an African-American defendant would have seen, thought and felt.
Canon 2A of the Code of Conduct applicable to the federal and most state judiciaries provides judges with an express mandate to act in ways “that promote public confidence in the integrity and impartiality of the judiciary.” The courts and justices who have spoken up in response to the killing of George Floyd and its aftermath have made explicit reference to that responsibility. They have pointed out that, while the killing of Mr. Floyd was unusual in that it was filmed in real time, it was anything but an isolated incident. Backed by an abundance of empirical data, they have noted correctly that African Americans as a group receive more punitive treatment at virtually every stage of the criminal justice process, including stops, arrests, pretrial detentions, charging decisions and, if they are convicted, sentencing. They recognize that, while it represents only one part of a larger system, the judiciary has an obligation to look for specific, systemic steps it can take to address these disparities and that only by doing so can it earn and maintain the trust and confidence of all of the people it serves.
None of the statements suggests that any judge should—or ethically could—decide any case in a way that is not fully supported by the evidence and the law. Nor does any statement ignore the fact—nor could it—that even disadvantaged individuals have free will and are responsible for the consequences of their actions. Nor do the justices minimize—nor should they—our society’s need for effective law enforcement and the significant, often life-threatening risks that our law enforcement professionals are asked to take.
Instead, the authors of the statements have shown courageous leadership in urging all judges, including themselves, to revisit and remain open to revisiting regularly their own worldview and assumptions. By committing to personal and institutional self-examination, and more importantly by following through on that commitment in the months and years ahead, these courts will set down a meaningful marker for all of us as we seek a fairer and more just society.
Expanding Electronic Access to the Federal Courts: the Pandemic’s Unexpected Opportunity
BY JUDGE JEREMY FOGEL, April 21
This article originally appeared in the National Law Journal; it is included here with NLJ’s permission.
View the original publication here.
The COVID-19 pandemic has dramatically disrupted our courts. Courthouses have been closed; hearings have been conducted with minimal staffing, held remotely or postponed; and court personnel have scrambled to work from home. Federal courts, which long have resisted electronic access and virtual proceedings, suddenly have had to implement emergency measures to facilitate them.
It would be disappointing if these measures simply were abandoned when the current circumstances have passed. While their first priority must be assuring the safety of court users and court staff, the courts also have an invaluable opportunity to study new ways of doing their work.
The Catalyst of Crisis
History teaches that crises can catalyze innovations that endure long after a crisis itself has ended. Efforts to mitigate the worst effects of the Great Depression permanently transformed government and left a legacy ranging from rural electrification to Social Security. It is doubtful that any of these changes would have occurred, at least when they did, had the disruption of our economy been less severe.
Our federal courts are widely respected for their independence, their professionalism and the seriousness they bring to their work. Social and partisan controversies aside, most federal judges decide most cases on the basis of competent evidence and applicable legal principles. This is not true in much of the world.
The federal courts also are a “small c” conservative institution. The same seriousness that inspires federal judges to produce high-quality work also leads them to be reflexively cautious about structural change. Properly concerned about the unintended consequences of different ways of doing things, the federal judiciary tends to consider new ideas infrequently, at length and in granular detail. Even the pilot projects it undertakes to study potential innovations are typically limited in scope and produce incremental results.
Such caution is valuable in normal times, but a disruption on the scale of the COVID-19 pandemic makes caution impossible. The public access to proceedings guaranteed by the Constitution is a physical impossibility given shelter-in-place orders and health risks to court users and personnel. Jury trials and in-person hearings are impracticable, movement of in-custody criminal defendants is fraught with logistical problems, and public presence in courtrooms and clerk’s offices is not a realistic option. Even the U.S. Supreme Court, which long has eschewed any real-time transmission of its proceedings, now will hold telephonic hearings and provide a live feed to the media and the public. The importance of the remaining cases on the Court’s docket made such a step necessary.
Considering Concerns With Remote Access
The Administrative Office of the U.S. Courts has issued guidance enabling lower federal courts to implement remote electronic access to most proceedings. Its directives stress that the guidance is temporary and will terminate once the current emergency has passed. This limitation was necessary because the authority to bypass existing rules is contained in legislation responding to the COVID-19 crisis.
Unfortunately, the emergency is unlikely to end soon. In the meantime, the courts’ emergency measures will produce a bounty of data concerning each of the principal areas of concern that have been cited to support judicial reservations about greater use of virtual proceedings.
One such area is privacy. Understandably, courts are reluctant to see images of witnesses, parties, lawyers, jurors and judges on the internet or social media. The current exigencies could help courts find practical ways of balancing privacy interests with the transparency provided by virtual access.
Another concern is security. Even under normal circumstances. courts use metal detectors to screen visitors. And the identity of certain witnesses— usually cooperators in criminal cases—can be shielded from disclosure after appropriate judicial findings. The courts’ experience in the present emergency could identify new ways to secure their electronic portals and to prevent harmful or unauthorized access to sensitive proceedings or information.
Other Constitutional rights are implicated by the use of virtual technologies. California’s courts had to decide whether criminal defendants may be arraigned remotely during the emergency without waiving their right to be personally present. The courts concluded that a waiver still is required. It is doubtful that a remotely conducted jury trial would satisfy the Constitution’s right of confrontation, at least absent consent. The current situation could enable in-depth thinking about the Constitutional dimensions of other remote proceedings.
Judges also worry about the impact of virtual operations on their own role. They express concern that lawyers will be less candid and that judges’ ability to assess nonverbal cues will be diminished. They fear that lawyers will have less incentive to cooperate away from the courtroom. And appellate judges, who sit with other judges, have trepidation about adverse impacts on collaboration and collegiality. The COVID-19 pandemic has created an opportunity for the validity of these apprehensions to be tested.
The federal courts have recognized that the costs of civil litigation are unacceptably high and skew access to justice in favor of wealthy parties. More frequent virtual proceedings could reduce costs substantially by limiting the time lawyers and parties spend getting to and being in court. With appropriate waivers, virtual criminal proceedings could result in substantial savings in inmate transportation costs and a reduced burden on law enforcement officers.
While federal courts consistently do better than the other branches in opinion polls, a closer look at the data shows that public confidence in the courts has declined in recent years and that few outside the legal profession understand what judges actually do. There is a widespread (and mistaken) perception that judges decide every case on the basis of their political inclinations. Confidence also varies significantly across socioeconomic groups.
Transparency is a powerful antidote to such negativity. Virtual technologies have potential for both court users and public education. While some proceedings are more amenable to virtual access than others, treating courthouse walls as an outer boundary for real-time information is hard to justify in this digital age.
The federal courts should take advantage of the unexpected opportunity that the COVID-19 pandemic has presented. They should thoroughly review their experience over the course of the present emergency and act boldly on the basis of what they learn.
Crisis Provides Opportunity for Examination of Court Culture
BY JUDGE JEREMY FOGEL
On April 3, in response to the closing of or severe restriction of public access to federal courthouses throughout the country because of the COVID-19 pandemic, the Administrative Office of the US Courts (AO) issued emergency guidance intended to enable federal courts to livestream various proceedings that until now have been accessible only through physical presence at the courthouse. A day earlier, the influential Scotusblog speculated that the US Supreme Court may be unable to hold in-person oral arguments for many months to come and likely will need implement some form of virtual proceedings. In both cases, permitting real-time electronic access would represent a major departure from tradition and institutional culture.
The guidance from the AO concludes with a statement that, “[t]he remote access authority granted by the CARES Act will expire 30 days after the date on which the national emergency ends, or the date the Judicial Conference determines that the federal courts are no longer materially affected by COVID-19, whichever is earlier.” This language is understandable given the extraordinary circumstances and limited statutory authority under which the guidance has been issued.
At the same time, the current situation presents a unique opportunity for the federal courts to think about the potential value of greater use of virtual proceedings going forward. Their experience over the remaining duration of the COVID-19 crisis will provide the courts with an otherwise unobtainable bounty of data that can inform new critical thinking about the future and perhaps even challenge some of the long-held concerns and assumptions that have made the federal judiciary generally resistant to remote public access. Both more efficient service to court users and greater public trust and confidence in the courts might result from such an examination.