Despite a few embarrassing glitches, the increased use of time-saving video-conferencing technologies by Florida judges and attorneys may be the silver lining of the coronavirus pandemic, according to legal observers.
Some of the problems with court hearings using the Zoom video-conferencing platform were aired this month by Broward Circuit Judge Dennis Bailey in a post on the Weston Bar Association’s website. Bailey wrote about attorneys attending legal Zoom hearings in attire that was too casual.
“One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers,” Bailey said. “And putting on a beach cover-up won't cover up (that) you’re poolside in a bathing suit. So, please, if you don't mind, let's treat court hearings as court hearings, whether Zooming or not.”
Jan Jacobowitz
Florida is one of more than 30 states that have defined an attorney’s competence to include knowledge of the benefits and downsides of technology, according to Jan Jacobowitz, director of the Professional Responsibility & Ethics Program at the University of Miami Law School.
“Historically, the legal profession has not been an early adopter of technology,” Jacobowitz told the Florida Record. “The pandemic has compelled everyone, including the legal profession, to embrace technology in an unforeseen manner.”
That a judge had to admonish attorneys to dress appropriately during Zoom hearings points up advice she frequently tells her students: that being an attorney is a 24/7 proposition when it comes to behavior, appearance and reputation, according to Jacobowitz.
“I believe that lawyers and judges are equipped to uphold the rule of law and administer justice in our current remote world, but our extraordinary circumstances require an even greater attention to the rules of conduct and professionalism,” she said. “In other words, the legal profession should emphasize and apply the traditional standards for dress, decorum and civility to our remote environment and let justice prevail.”
Jacobowitz, who has been successfully using Zoom to interact with students, said attorneys would adapt well to the increased use of technology.
“It won’t be a problem for the lawyers other than they have this added layer of having lighting and volume correct and their internet stable,” she said.
Though there have been some incidents of attorneys not being civil to one another as a result of hearing delays during the COVID-19 crisis, decorum and cooperation have largely prevailed, according to Jacobowitz.
“I frankly believe that as unfortunate and horrible as all this is in terms of people being ill and all the downsides of the pandemic for the legal profession … there will be a silver lining of having been compelled to adopt technology so that when we return to whatever the new normal is going to be, there may be a more efficient use of technology,” she said.
The practice of law remotely will get a high-profile tryout next month when the state Supreme Court holds oral hearings using Zoom. A spokesman for the court said all the parties involved will give the hearings the seriousness they deserve, especially since the sessions will be broadcast statewide, as they have been for 23 years..
“Our clerk’s office has reminded the lawyers that proper decorum is expected for all arguments, including those during the coronavirus pandemic,” Craig Waters told the Record in an email. “The attorneys making arguments May 6 are seasoned professionals who have argued in the Florida Supreme Court before.”
Brian Tannebaum, an attorney in the areas of ethics and white collar defense for Bast Amron LLP in Miami, said he expects the technology to be used even after the current crisis has passed, since it allows attorneys to avoid time-wasting drives to courthouses to take part in run-of-the-mill status hearings that typically last five minutes.
“I think that the judges are realizing that this stuff works, and lawyers are getting used to it,” Tannebaum told the Record, adding that remote sessions would likely become the norm for non-evidentiary hearings. “... The time savings of doing these things remotely is going to drive how it becomes part of the system.”
Attorneys can navigate dress and decorum issues by examining whether an online session involves just a judge and a few lawyers vsersus a more formal session where there are multiple attorneys, a clerk, court reporter, corrections officials and others attending, he said.
“I don’t think lawyers should be appearing shirtless,” Tannebaum said. “I don’t think lawyers should be appearing in their beds. But as far as the requirement of the full uniform, you have to realize that eventually the public is going to join in on a lot of these hearings, and it’s going to show up on the news.”
Overall, those involved in such remote hearings have been cordial and waiting their turn to speak, he said, and the expected norms of the justice system are being maintained. But a question remains about how the public will adapt to Zoom meetings.
“My overriding question about this technology is that courtrooms are public,” Tannebaum said. “... I’m wondering how it will work for the public.”
But for those participating online, it’s largely a matter of getting people used to the technology, he said.
“The silver lining to all of this is realizing that there is a ton we can do without bringing a single person into the courthouse,” Tannebaum said.
Though jury trials will likely continue on an in-person basis, routine hearings will be dealt with through teleconferences, he said.
“What we’re realizing now is, No. 1, it works and the time saving is unbelievable,” Tannebaum said. “... Every judge is going to have their Zoom calendar and their regular calendar.”