Section Review

From left: Andrew P. Giarolo and Elizabeth A. Soule

During the spring of 2024, the Access to Justice Section Council of the Massachusetts Bar Association circulated a survey to you, our colleagues, to ascertain your thoughts, concerns and overall opinion about virtual hearings in courts throughout the commonwealth. As we all know, the pandemic created a need that had previously not been necessary: the ability to bring litigants and their attorneys into a court setting without physically being present in a courtroom. Some efforts on this front were successful; some less so. Our survey assessed practitioners’ responses to the use of Zoom, the preferred provider, in court proceedings. The survey was live for approximately two months, and several notices and reminders encouraged participation. In total, 112 of our colleagues responded. Positive reactions far outweighed negative in the responses, with many participants appreciating the flexibility and the cost efficiency of Zoom vs. in-person proceedings. Negative reactions centered around technological difficulties as well as the lack of in-person connection, both between litigants and counsel, and between litigants and the court. Overall, our colleagues throughout the Massachusetts bar generally feel that there is a place for Zoom in court in a majority of circumstances, while in-person hearings should remain for the more critical stages of court proceedings. 

In order to ensure that Zoom proceedings are effective, litigants and counsel must know not only when they must be before the court, but how to access the proceeding. Forty-four percent of respondents indicated that they got notice solely by mail; a further 29% received email notification. Some respondents (about 10%) indicated that their courts sent both versions. Only 17% of respondents were checking MassCourts or keeping their own calendar. The survey also asked how pro se litigants were getting notice. More than half of our respondents did not know, but of those who did, approximately half indicated that the pro se litigants were also receiving mail notice and a few were getting email notice. Of the respondents who were getting notice, 96% were told on their notice what the format of the hearing would be. Even so, 69% of respondents reported having the format change at some point before the hearing. Of these, 54% indicated that they received the notice in plenty of time to adjust their schedule, but 26% got notice at the last minute. A rather concerning 16% received no notice of the change. Hopefully, these litigants were getting last-minute calls from the clerk’s office asking where they were. This practice needs to be standardized across the commonwealth, which can be accomplished with minimal inputs. We recommend that clerk’s offices throughout the commonwealth email notices to all litigants, whether represented by counsel or not. If any last-minute changes are necessary, in an ideal world, litigants should be telephoned with the change, but at least receive email notification of the change.

Once noticed to be on Zoom, several difficulties rose to the forefront as concerning to many of our respondents. Technological difficulties continue to be a problem. This can be broken into two main constraints: lack of access and lack of knowledge. As to the former, the primary difficulty highlighted was a spotty internet connection. Multiple people complained that either they or their clients experienced a slow connection and, as a result, were unable to communicate with the court. The other issue was, despite four years of continuous Zoom usage, some people still do not know how to operate the platform. One respondent stated that people do not know how to use the “share screen” function so that they can share documents either with the court or with a witness they are questioning. Presumably, the issue of forgetting to turn on one’s microphone or camera is another, though no one specifically stated this. Several people also noted that Zoom takes away an avenue of communication that can help to resolve issues within cases and even cases themselves. These people highlighted that the time in court together offered an opportunity to discuss matters and ultimately move their cases forward more expediently. Still other respondents lamented a certain lack of decorum that Zoom created as a result of not having to be physically present in court. Litigants — and even worse, attorneys — are Zooming in from their cars (sometimes even while driving), wearing casual clothes, and doing all manner of things in the background while in court. The last is particularly concerning if your court has the, shall we say, “Brady Bunch” approach to Zoom and people are doing all manner of things while the court is trying to hear cases. Lawyers at least can be reminded that Zoom court is just as official as in-person proceedings. All of this being said, 67% of respondents, or two out of every three, love Zoom and want it to remain an option.

Zoom certainly has a number of benefits within the court system, and our colleagues recognize this. Indeed, only six respondents stated that they disliked Zoom and wished it would go away. Eighty percent of respondents liked the flexibility that Zoom offered, including providing an alternate access for people with disabilities, people not able to get child care, and people with issues traveling to court. Ultimately, the cost to the attorney, and by extension to the client, is significantly less with Zoom than with in-person hearings. Many respondents highlighted the time, money and resources required to travel sometimes several hours to court to be present for a five-minute hearing. One respondent stated that, while they had 1,000 examples, in one Land Court case, they were able to bill the client for .2 hours, rather than 2-3 hours plus parking fees. Travel time and parking were repeatedly mentioned. Thirty percent of respondents liked that they could appear in multiple courts around the commonwealth on a given day and not have to scramble to drive or otherwise travel to multiple courts. Cases in Dukes County (Nantucket and Martha’s Vineyard) were particularly noted here. The probate and family courts throughout the commonwealth got praise for accessibility via Zoom. One respondent said the Virtual Registry was wonderful. Zoom also allows access in unique ways. Two respondents highlighted that people with COVID (one an expert witness, the other the attorney themself) were able to participate in court. Further, out-of-state clients and, for two attorneys, out-of-country clients, were able to appear virtually and be spared a rather burdensome travel expense. A few respondents noted that Zoom provided a safe haven for survivors of intimate partner violence to be able to participate in the court proceedings without intimidation by their abuser.

On the other hand, Zoom has a few drawbacks, some of which might be reparable, but others are simply inherent in the nature of the virtual proceedings. Many respondents complained about being stuck in a waiting room for hours with no contact with the court. They did not know if they had been forgotten or, alternatively, if they had stepped away for a minute and had missed the call of their case. One respondent was placed into a breakout room with their client, a survivor of domestic abuse, and the opposing counsel and their client, the abuser. They were stuck in the breakout room staring at each other for hours. The alternative is the “Brady Bunch” approach, whereby everyone is in the court. However, this approach is very distracting, especially in a hybrid environment where some participants are in court and others online. One respondent suggested that it would be great to have an option to mute and turn off the camera of any party whose case was not being presented before the court. This is a functionality in Zoom, but the clerk needs to know how to use it in order to be effective. Conversely, when parties are before the court, many respondents were concerned with not being able to see opposing parties or their clients so that the court could assess any statements being made and ensure that no coaching was occurring offscreen. Finally, at least one respondent stated that their clients seemed not to think that they were going to “real court” and were disheartened that it felt so casual. As previously stated, some of these issues are fixable, but some are simply a function of being on Zoom and not physically present in the courtroom.

Many respondents actually preferred Zoom in certain circumstances over in-person events. Reasons included safety for domestic violence and sexual abuse survivors and allowing low-income litigants to participate without having to spend all day in court, as well as the aforementioned work flexibility. Respondents suggested that Zoom be the default for scheduling, status, and case management conferences; District Court discovery and pretrial hearings; District Court civil matters; and Superior Court non-evidentiary matters. In essence, anything that is either agreed upon or minimally disputed could be heard virtually. One the other hand, the vast majority of respondents agreed that oral appellate arguments and trials are better in person. Additionally, any matter that is truly contested should be in person so that the judge can see and hear all parties equally. One respondent did lament that Zoom seemed to create a dichotomy that some cases were more important than others and worried about the slippery slope this entails. They wondered how a minimally competent child or a person who just lost their children in the Probate and Family Court would feel if their matter were heard via Zoom. Altogether, there was no single court that was “Zoom-preferred.” About 50% of respondents identified the Probate and Family Court, and 28% of Superior Court (civil matters) and District Court practitioners preferred Zoom. Fifteen percent of respondents said the same about administrative proceedings, and 14% did so for Land Court matters. Arguably, given the relative prevalence of cases and practitioners, if one really dug deep into the numbers here, the number of attorneys supporting the Zoom default in these courts might come out closer to a majority, if not higher. Conversely, 26% indicated Zoom is not preferred ever (for a number of different reasons) for Supreme Judicial Court matters, 12% for Superior Court criminal matters, and 10% each for District Court, Juvenile Court, and Probate and Family Court matters. Fifty-six percent, though, responded that there is a place for Zoom in all of the courts throughout the commonwealth. The Access to Justice Section Council recommends that the courts of the commonwealth promulgate rules that standardize protocols and procedures, consistent with the findings of this survey, that would increase flexibility for litigants and their counsel and ensure access to justice for parties throughout our commonwealth.