Smoke darkens the computer screen in front of the magistrate Jennifer Towel. She was conducting an online eviction hearing on another busy day at Akron City Court. The cloud floated in front of the image of the owner in the case. He was sitting on a chair and holding a cigar.
“It kept blowing and the smoke was covering the whole screen,” Towell said.
This is one of the unprecedented experiences that judges and magistrates are having with the advent of online legal proceedings, made essential by the COVID-19 pandemic. Maintaining an atmosphere appropriate to the serious nature of a hearing is a problem that court staff routinely face inside courtrooms. During an in-person proceeding, an attentive bailiff can thwart misconduct and missteps before and during hearings, for example by dealing with inappropriate clothing or cell phone use.
In today’s most common videoconference hearings, however, participants — many of whom have never been to court — sometimes adopt a more relaxed attitude. This is despite the courts’ efforts to explain the rules and expectations in the documents sent to the parties beforehand.
Towell and his colleague, Magistrate Kani Hightower, presides over eviction hearings four days a week, holding 20 to 30 each morning. To manage the pacing, 15 to 20 people simultaneously fill the magistrate’s screen — similar to how groups of tenants, landlords and lawyers appear in a physical courtroom, Towell said.
More than one person tuned into an audience while lying on their bed, she said. She also asked a man if he knew he wasn’t wearing a shirt.
In these situations, judges and magistrates patiently guide the audience, reminding them of rules such as no smoking, eating, or drinking during court, as Towell did with the cigar-puffing landlord.
“We have decided not to take testimonials from people who drive.”
— Jennifer Towell, Magistrate, Akron City Court
Big machines and hospital wards become courtrooms
Apart from the challenges, there are the advantages that the online court offers to those who have to deal with a legal matter.
Magistrate Kathleen Lensky of Montgomery County Juvenile Court said video proceedings have helped parents with health issues in important cases involving their children. A mother receiving cancer treatment watched her audition from her hospital bed. Another mother who suffered an accident that left her paralyzed had to appear in court to transfer custody of her child to her grandmother.
“The mother could not be transported to the hearing,” Lenski said. “Zoom allowed her to come forward and be part of the process, which meant a lot to her.”
Hotels and factories aren’t out of the ordinary as the backdrops for an online hearing before Montgomery County Juvenile Magistrate Kathleen Lenski.
“I’ve had people Zoom in who are incarcerated, out of state, and in treatment facilities,” she adds.
The most common scenario now, she said, is presence in the workplace, like mothers logging on from hotel rooms they clean and fathers coming out of break rooms. An aunt signed from her forklift.
She had obtained temporary custody of her nieces and a nephew a year earlier. Lenski said everyone was in favor of the aunt receiving full legal custody, but the court needed to finalize the order on file.
“She worked in a factory. She had little personal time off and what she had she had to take for the children she was caring for,” Lenski said. “Her workplace granted her a small window to participate in the hearing. She did it during a break while sitting on her forklift in her helmet.
“I thought it was great to see a woman in a factory driving a forklift. She showed us the gears of the truck and how she could handle it,” adds Lenski.
From dressy to courteous – lawyers have different points of view
The new normal of online proceedings is prompting a range of responses, even from members of the legal profession. Towell said a lawyer, quite experienced in municipal court, appeared on screen in a tank top. She nudged, “Master, would you put on a jacket?”
At the other end of the spectrum are attempts to recreate courtroom formality – in all its facets. Judge Marie-Jeanne Trapp recalls a case she and two other judges heard in Eleventh District Court of Appeals.
“The lawyer took this so seriously that he built an entire courtroom in his living room, complete with a courtroom table, bench, witness stand, lectern and professional video and audio equipment” , she explains. “I think there was even a flag.”
Overall, Judge Trapp credits the smooth running of the appeals court sessions to the Eleventh District Case Coordinator, who conducts pre-trial testing sessions with each attorney and with self-represented individuals. The trickiest, however, are hybrid arguments, which some attend in person and others online.
When many people are connected to an audience from separate computers in the same space, comments and audio delays disrupt discussions. Judge Trapp found a professional microphone that everyone in a room could use instead of multiple laptop microphones. She said it greatly improved sound quality and eliminated feedback.
“I quickly became a sound engineer,” she says.
“I’ve had Zoom in people who are incarcerated, out of state, and in treatment centers.”
— Kathleen Lenski, Magistrate, Montgomery County Juvenile Court
Safety surfaces as a consideration, as is privacy
During another online eviction hearing, Towell noticed a seat belt fastened on a woman. The magistrate asked if the woman was driving. The woman replied, “No.” Towell insisted, pointing out that the trees in the background were moving.
“Oh, I didn’t understand the question,” the woman said.
Towell told the woman the hearing would resume once she parked.
Akron Municipal Court Magistrate Jennifer Towell saw her fair share of people appear for court video conferences while in moving vehicles.
“It’s a very common occurrence,” Towell notes. “We have decided not to take testimonials from people who drive.”
Court staff are also now assessing the unique circumstances of online hearings. Towell was considering the background of an eviction case for the next day. It was a family eviction involving a mother and her son, who lived in his mother’s house. The mother asked the court to expel her son because he beat her. She submitted photos of her injuries.
Towell was concerned that the mother was discussing her case when there were parts of multiple cases on screen.
“I waited until I had her hearing at the very end when everyone had logged off so she wouldn’t have to witness the physical abuse in front of a large group,” Towell said. “She was very emotional and grateful.”
“You just want everyone to get justice,” adds Towell. “Computers sometimes lose the human element, so you try to maintain both the human element and the seriousness of the audience.”
“Great victory for access to justice”
As judges, magistrates and court staff continue to learn and improve the way they conduct videoconference hearings, they point to the positives.
“More parties are appearing for their hearings,” Towell notes. “They usually don’t have to take time off work or babysit as much as they did for in-person proceedings.”
“It was a big win for access to justice,” Lenski said. “It’s a balance, and there has to be a very thoughtful way of going about it so that due process is protected. Scheduling hearings in advance takes time, but it’s definitely worth it for those who appear in court.
Design: Ely Margolis
Web: Erika Lemke