The COVID-19 crisis has upended the litigation landscape across the country by sending court proceedings online, and University of Pennsylvania Carey Law School alumni and current students are rising to the challenges presented by this new normal, sometimes discovering that virtual court appearances have unexpected advantages.
Judge Raymond Headen L’87 led the effort to bring his court, Ohio’s Eighth District Court of Appeals, online.
“We went through a process back in March where we looked at any number of possible ways of dealing with the pandemic,” Headen said. “One of the things we want to be able to do is maintain a consistent system of justice.”
In the early, uncertain weeks of the COVID-19 crisis, Headen and his colleagues on the bench decided to forego oral arguments and instead had all cases submitted on briefs. Then, as the rest of life migrated online, “it was really easy to make the decision” to begin holding oral arguments on Zoom, Headen said.
Moving court proceedings online
Ohio courts adopted new standards “to make sure that attorneys are taking the appropriate care to maintain the dignity and decorum of the court,” said Headen. For example, argument participants are advised to refrain from using a virtual background — attorneys appearing to be Zooming in from outer space or a scene in their favorite television show are not welcome in Judge Headen’s courtroom.
“I would say eighty-five percent of the attorneys are fine,” he said. “They’re in their offices. They’re handling themselves well. But a couple of attorneys have actually called in on their phone while driving, one who was handling a criminal case, which is just ridiculous. We chided that person.”
Despite the occasional undignified moment, Headen said that holding virtual arguments “has increased access to the court system for people who typically would not show up when we were in person.”
Headen indicated that members of the public who might not have felt welcome attending oral arguments in person can now watch and listen in from their homes. Virtual proceedings also make litigation more efficient and cost effective for attorneys who might otherwise have had to travel from far-flung parts of the country, Headen noted.
John Papianou L ’01, a partner and chair of the Litigation Department at Montgomery, McCracken, Walker & Rhoads in Philadelphia, recently made history by taking part in the first livestreamed session of Pennsylvania’s Commonwealth Court, an evidentiary hearing for a case involving a dispute between two wine sellers, a restaurant, and the Pennsylvania Liquor Control Board. Papianou represented the plaintiffs, whose businesses had been negatively impacted by Governor Tom Wolf’s mid-March order shutting down state liquor stores.
Before the judge appeared, Papianou’s opposing counsel posed a novel question to the court crier, creating a light-hearted moment in the virtual courtroom.
“This may sound silly,” the attorney said, “but do you want us to stand up in our own houses when he comes on screen?”
The court crier laughed and told the attorneys they could remain seated since, he said, “we may not be fully dressed appropriately for court from the waist down.”
Virtual court appearances – a great equalizer?
With so many new conventions to simply appearing in court, attorneys with years of experience and students going to court as Certified Legal Interns are likely to find themselves similarly bewildered, at least at first.
During a recent appearance in Philadelphia Family Court, Jessica Rizzo L’21 also found that, despite the logistical challenges presented, being separated from an opposing party by a screen can be a blessing for some clients.
“I went to court for a virtual hearing related to a Protection From Abuse Order my client had filed against an abusive ex-boyfriend,” said Rizzo, who undertook the representation through Penn Law’s Custody and Support Assistance Clinic. “The technology was an impediment in that, without eye contact, it was always a bit of a mystery who the judge was speaking to, who he expected an answer from. We all accidentally interrupted each other a fair amount, but everyone was understanding and took it in stride.”
Rizzo said she also “missed being with my client physically during the hearing, being able to whisper in her ear, to tell her it was her turn to answer, or just to be a calming presence.” Still, there was a one major benefit to conducting the hearing virtually.
“My client had been brutalized by her ex,” Rizzo said, “and the thought of being in the same room with him again, even with court personnel around, was really upsetting for her. Just seeing him on that screen was difficult, but holding the hearing virtually spared her a lot of pain. It was a huge relief when I told her she wouldn’t have to appear in person.”
Judge Headen predicted that some of the COVID-19 changes will become permanent changes.
“We’ve got a new normal,” he said, “and the new normal will likely one day come to a conclusion, but we should be asking what are those practices that should survive and make our justice system better?”
The most important thing, Judge Headen said, “is that justice does go on.”