Virtual court proceedings enable lawyers to more easily represent clients at a lower cost, are less disruptive to the lives of litigants and are more technically demanding on judges and their courtrooms.
Those were the broad messages contained in more than 200 pages of comments submitted to the Colorado Supreme Court on a pair of proposed directives governing remote access to judicial proceedings. However, those who weighed in to the state's highest court also illuminated many benefits, burdens and less-obvious complications that accompany the move away from in-person appearances.
"There are times a person is in hiding from their perpetrator and participating in virtual proceedings allows them to stay safe," wrote Jenny Santos, who works with victims of domestic violence and sexual assault.
"Running a virtual courtroom has become the worst part of my job," countered Park County Court Judge Brian Green.
Late last month, the Supreme Court publicized two draft chief justice directives, which are policy documents governing operations in the judicial branch. A product of the pandemic-era switch to online hearings, one directive would provide guidance statewide for when trial judges should allow for remote participation. The other laid out criteria for livestreaming proceedings in criminal cases.
In a departure from other chief justice directives, the Supreme Court opened a two-week period to receive public comments.
An email from Chief Justice Brian D. Boatright on Feb. 28 to judges and judicial staff indicated the goal was to set "baseline expectations for the public and attorneys," but he also hinted at a desire to stave off a mandate from the legislature.
"I believe it is far more preferable for the judicial branch to adopt its own policy that preserves judicial discretion and that we can continually review, improve, and expand if appropriate," Boatright wrote.
More than 100 attorneys, judges, organizations and people with no apparent connection to the legal profession submitted their thoughts on the proposed policies to the Supreme Court. Generally, judges supported the notion of allowing each of them to have the final say over his or her own courtroom's policies. While no one disputed outright that some types of proceedings lend themselves to remote appearances or streaming online, there was less agreement about how far to push the boundary.
Overall, the comments illustrated a balancing act inherent in moving court online: What is easier for the lawyers and litigants can translate to a larger burden on judges.
"Now, it seems, the court clerks are in the business of babysitting," observed clerkAmanda L. Lindsey.
Thumbs up from many lawyers
Among lawyers, particularly those who represent criminal defendants or who work in spread-out jurisdictions, support was overwhelmingly behind remote appearances.
"Prior to COVID, it was not uncommon for me to appear in person in three counties, spread out over 100 miles and two mountain passes in a single day," wrote Beth A. Padilla, an attorney in southwest Colorado. "The likelihood of hitting an elk or being stuck in a blizzard returning from court in Pagosa Springs after dark, in the winter, is substantial."
Kate Radley Ellis, who practices in Denver Juvenile Court, agreed that the option to appear virtually "has been the one silver lining of COVID."
Multiple lawyers described the ease of appearing by computer in multiple jurisdictions in a given day on behalf of their clients, something that would be cost-or-time-prohibitive otherwise. They indicated it is no longer necessary to bill their clients— or the state, in some cases— for time spent traveling to the courthouse and waiting for a case to be called.
Others cited the benefits for litigants, namely the ability to participate in often-inconsequential procedural matters without needing to take time off of work, find childcare or arrange transportation to the courthouse. They pointed to data from Arizonashowing a much lower failure-to-appear rate among tenants facing eviction who are allowed to attend court virtually.
Those who work with crime victims further argued virtual appearances enable victims to stay separated from their perpetrators.
"Aside from safety, most victims and defendants in our county ... work multiple jobs and/or odd hours. They are generally service workers who do not have access to paid leave. A virtual appearance is much less costly to their already-strained budgets," wrote Nancy Fryer, a victim advocate in Archuleta County.
Trial judges' complaints
Several trial judges submitted their thoughts to the Supreme Court, with many in agreement on one aspect of the chief justice directives: They and their judicial districts should be the ones deciding whether to allow remote appearances or livestreaming.
"The main concern that we have in Jefferson County is that judicial officers continue to have discretion, and the ultimate determination," wrote District Court Judge Tamara S. Russell.
Some judges were in favor of more permissive guidance than the drafts currently envision. For example, the chief justice directive about livestreaming appears to explicitly bar trials and evidentiary hearings, or else require judges to make specific findings in order to permit broadcasting.
"I am thinking we may not want a CJD (chief judge directive) that says no streaming of hearing/trials/etc. ever," suggested Chief Judge Christopher J. Baumann of Denver, elaborating that sometimes judges choose to broadcast high-profile trials. "I am not sure the CJD should be as restrictive as the current version is written."
At the same time, the Supreme Court heard from those who believed virtual appearances have become too permissive, to the detriment of the judicial system.
"Not all courtrooms are equipped with large monitors. Indeed, the webcams I use were purchased by me; the state has never provided any," wrote Denver District Court Judge J. Eric Elliff. He added that not all litigants have reliable Internet or phone access, there is not the same degree of "seriousness" as in-person appearances and he has seen users onscreen in "various states of undress."
"(W)e are dumbing down the process," Elliff contended.
Green, the Park County judge, advocated for all appearances to be in-person by default.
"My experience with virtual court has been extremely frustrating and annoying. Constant interruptions, background noise, bad connections, rude behavior, profanity, noises that sound suspiciously like masturbation," he wrote. "I used to enjoy my job— now, thanks to virtual court, that is no longer the case."
Victims, interpreters and other considerations
The treatment of children and crime victims in virtual and streamed proceedings was a concern for many who weighed in. The Colorado Coalition Against Sexual Assault, for example, requested the directives make clear that victims are able to attend virtually even if the general public is not allowed to.
Others raised the problem of language interpreters translating "consecutively" in virtual proceedings, requiring participants to stop every couple of sentences to allow for the translation. Attorney Michael A. Stuzynski described the "embarrassing delays" that result, and also warned about interpreters' refusal to translate attorney-client communications when the proceedings are virtual.
Participants in the justice system cycled through the list of less-obvious concerns about virtual hearings: Self-represented plaintiffs may be more likely to get the help they need in person; cases can be more prone to settlement face-to-face; it is difficult to know who has joined a virtual hearing and whether their intentions are malicious.
James P. Houtsma, a prosecutor in Adams and Broomfield counties, claimed the use of virtual hearings "opened a troubling can of worms" that degrades the image of the justice system.
"I think virtual proceedings have contributed to the decline in respect for our institution. I think the police, judges, prosecutors, victims all suffer due to virtual appearances," Houtsma wrote. "Why make it harder on judges and victims for the benefit of criminals."
On the other hand, some commenters took an expansive view of the benefits. Modern Family Law estimated that it conserves at least 4,680 miles of travel per year when its Denver-based attorneys are permitted to appear virtually, and advocated for the Supreme Court to consider the environmental impacts from unnecessary in-person appearances.
Even if virtual proceedings lead to a more relaxed atmosphere that imperils the dignity of the courtroom, "perhaps attorneys should be required to stand at their desks like they would at the court podium," suggested attorney Chris Radeff. "Standing lends towards increased professionalism."
Livestreaming
Under the proposed livestreaming policy, which pertains only to criminal cases, there are several types of proceedings labeled off-limits, including trials, evidentiary hearings and bench conferences between the judge and the parties. Trial judges may, however, increase or limit livestreaming by considering the impacts to the parties, victims and "dignity" of the court. Screenshots and recordings of the livestream would remain prohibited and be subject to contempt of court.
The Denver Post argued the Supreme Court should expand the range of proceedings able to be streamed.
"The Post strongly objects to including jury trials and evidentiary hearings among the proceedings that should not be livestreamed unless a judicial officer decides otherwise," wrote reporter Shelly Bradbury, editor Lee Ann Colacioppo and managing editor Matt Sebastian. "These proceedings are the backbone of the court system, and as such should be more accessible to public view, not less."
Tracy Harmon of The Pueblo Chieftain echoed that the media could more easily cover proceedings that are streamed virtually, given how there are "fewer of us left whose job is to report on criminal proceedings on behalf of the public and we are spread extremely thin."
Even the Judicial Department's own spokespeople, Rob McCallum andJon Sarché, submitted a letter pointing out that livestreaming high-profile cases would reduce crowding in courtrooms and potentially ease security issues.
Concerns about livestreaming included thedifficulties of enforcing the "no recording" rule or ensuring witnesses who are not supposed to hear other testimony remain sequestered. Several commenters suggested requiring those who join the livestream to sign in with their real names to keep tabs on who is present.
Members of the legal community, however, recognized the increased benefits of public access, including the ability of victims to remain in a safe space when watching and for future lawyers and judges to gain exposure to the court system more easily.
"A young woman attorney recently watched one of the interesting criminal trials in Denver District Court and, as a result, applied to be a deputy district attorney in our office because she was so impressed with the presentation," wrote Denver District Attorney Beth McCann. "She has been with us for about a year now and has a great future in the office."
A rushed process?
A handful of groups asked the Supreme Court to extend the two-week comment period for the chief justice directives, arguing the window to provide feedback was too short.
"Fifteen days is just — we had no idea this would be the method of weighing in," Elisa Overall, executive director of the Colorado Access to Justice Commission, told Colorado Politics. "The turnaround will not allow for the majority of people who will be affected by this policy to make their comments known to the Judicial Department."
In December, the commission issued a report with six recommendations for the judiciary to pursue. Overall said the directives come close to satisfying the recommendation to "encourage the use of remote appearances."
"But there's really not a technology plan to get the courtrooms to where they would need to be in order to have the kind of widespread continued access to virtual appearances," she added.
In its comments to the Supreme Court, the commission submitted a three-page chart listing various types of civil court proceedings and indicating whether they should be virtual by default or in-person by default. The commission also suggested that a judge's failure to allow for remote appearances should become part of the performance review during a retention election.
At the same time that trial judges advocated for their own discretion in handling remote proceedings, some commenters warned against walking back the statewide uniformity the directives seek to provide. In addition, aproposed piece of legislation is hanging over the judiciary that would generally require criminal proceedings to be broadcast without the caveats or conditions in the chief justice directives.
Some commenters welcomed the threat of legislative intervention, should the chief justice directives be inadequate.
"When a significant portion of civil litigants are unable to actively participate in an essential court matter," wrote Jack Regenbogen of the Colorado Poverty Law Project, "the legislature has a vested interest in providing parameters for allowing reasonably accessible participation to the courts."
