Could courts be forever changed by Covid?
Judges, attorneys mixed on future of virtual hearings
The Regional Justice Center in Downtown Las Vegas. (Photo by Ronda Churchill for The Nevada Current)
Clark County Family Judge Stephanie Charter wants to see the people who appear in her court up close and in person. After all, the lives of the children who come before her may depend on it. Charter makes the tough decisions – whether to remove a child from a home, reunite a family with a history of abuse, terminate parental rights, or approve adoptions.
“In virtual land, it’s just so difficult because we have so many people – teachers, caseworkers, parents, foster parents, relatives – so sometimes it’s like the Brady Bunch up there on your screen. You have ten people or so, and no one really knows when to speak and not to speak, and they’re driving in their car or they’re doing other things and it’s just as challenging as it is in every arena in which things are done virtually.”
She’s even had participants appear from bed.
“What we’re supposed to be doing, obviously, is acting in the best interest of the child. But if we’re not really getting the full picture, are we really acting in the best interest of the child?” she asks rhetorically.
Charter, speaking for herself and not her colleagues, says the ability to observe interaction among children, parents, foster parents, and caseworkers is missing from virtual hearings.
She’s hoping a commission formed last month by the Nevada Supreme Court to determine best practices going forward will not mandate virtual hearings, even for status checks.
“Under the chairmanship of Justice James Hardesty and Justice Douglas Herndon, the commission will evaluate applicable rules to govern the unified use of remote technology in Nevada’s general and limited jurisdiction courts and will consider applicable rule changes as necessary,” says the commission’s website. Members are judges and attorneys from throughout the state.
“Some judges feel strongly that in any kind of evidentiary hearing or trial where someone is testifying, the testimony should be in person, as they find it easier to do things like consider credibility of witness,” Kim Abbott of the Legal Aid Center of Southern Nevada’s Children’s Advocacy Project said via email. “Yet other judges (including most of the dependency judges) have been doing trials just fine over video throughout the pandemic.”
Civil attorney Kevin Diamond mostly represents hotels in liability cases, but donates his time to the Children’s Advocacy Project, representing children who are abused and/or neglected. He says in-person hearings are especially important in dependency cases, where families may be reunited or torn apart.
“It’s huge to be able to see the parents who are either losing their children or trying to get their children back and to see the kids who typically don’t understand what’s going on,” Diamond says. “If you can get them in a courtroom and see the judge, it makes a much bigger difference, especially judging credibility.”
“I am definitely not in favor of keeping virtual after COVID is completed,” says Diamond. “I think it’s a disservice to the profession and to the community.”
Diamond says virtual hearings are no substitute for arguing a case in person.
“There’s always more to it than what’s in the pleadings,” he says. Now, “judges are making decisions based on pleadings. It’s just harder to get your point across. It’s harder to gauge the temperature in the room, so to speak.”
Virtual hearings are a disservice to new attorneys, he says, because it deprives them of the ability to “learn how to act on their feet.” And he says participants on Zoom calls are “focusing on five different things at the same time.”
“Virtual hearings can promote safety and efficiency. However, as courts increasingly use virtual options, special care has to be given to ensure that the public and the media continue to have access to proceedings,” says attorney Maggie McLetchie.
“It seems to me we are seeing a lot more participation by relative caregivers and foster parents who can jump on a link easily for a hearing that they probably would not have taken off work, arranged child care, or lugged kids to court for,” says Abbott. “That participation and added perspective is beneficial to the process.”
Young people, Abbott says, are also able to use their owns phones or computers to attend virtually, and not have to take a day off from school. Virtual appearances are also less intimidating for youth than coming to court.
Abbott says the “biggest benefit of virtual appearances” is expanded accessibility to court.
“Many of the families in the dependency system are low income, have transportation issues, ride the bus (sometimes for hours to get to court), etc.,” she says. “To come in person for a brief hearing, parents were sometimes having to take a half day, if not a full day, off work. Now, they can be in a virtual waiting room on their phone or computer while at work and just take a brief break when the hearing is called, minimizing work disruptions and lost wages.”
“I’m not sure how convenient we really should be making it because it’s part of the issue with raising children is you have to get from point A to point B,” says Charter. “So you need to show us you can get from your home to court and participate in a hearing, and be dressed appropriately, and be interacting appropriately, and not swearing at the court and not hanging up on the court. There’s a huge difference between just being able to sit there and participate and being able to meaningfully participate.”
Diamond says mechanisms already exist to afford access to justice to those who can’t make it to court.
“We’ve had the ability to call in if there was a need for that,” he says, noting courts used technology pre-pandemic. “I think accommodation is extremely important.”
Diamond agrees virtual hearings are more convenient. “But convenience doesn’t always equal efficiency and credibility.”
Clark County Family Court Judge Heidi Almase wrote to the Supreme Court in June regarding the effort, alleging “a committee of family court judges” is working, “without a vote from the Family Division judges… to make virtual hearings for law and motion matters via audio-visual means the default rather than in-person appearances.”
She says the “effort appears to parallel efforts set forth” in the Supreme Court petition to adopt best practices for virtual hearings.
Almase did not respond to a request for comment.
“I think it’s going to be a hybrid,” says attorney Dayvid Figler of the practices likely to be advocated by the commission. “I think that some of the things that actually work during the COVID times with regard to remote appearances are going to be kept in place with a little bit more enforceable procedure in place, especially with issues of protocol.
Figler says the Sixth Amendment right of defendants to confront their accusers are also at issue.
Clark County Special Public Defender JoNell Thomas wrote that she hopes the commission and Supreme Court “will adopt a nuanced approach, at least in criminal cases, which addresses technological needs and limitations, the confrontation rights of an accused person, impacts on remote proceedings on the attorney-client relationship, and the benefits of having virtual proceedings for routine matters or urgent matters which should not be postponed until an in-person appearance is possible.”
A September 2020 study that questioned judges and other court participants in Nevada’s 11 judicial districts reaped responses from 27 “stakeholders” in seven judicial districts. More than half said virtual hearings were being conducted on Zoom, while 37 percent said hearings were by telephone only.
Participants cited visitation and the lack of collaboration between agencies and the courts as the greatest challenges posed by the pandemic.
Others cited delayed timelines, especially for Termination of Parental Rights cases, while others noted a lack of services and resources available for children and families.
A few cited the disparity for court participants in access to technology for court hearings, while a few more mentioned the quality of hearings “due to technology issues.”
Four out of five attorneys and caseworkers reported virtual contact with parents was “about the same as normal” compared with pre covid practices. A quarter reported meeting less often than normal.
“Remote hearings were significantly longer than in-person hearings,” says the study, with remote hearings averaging 32 minutes compared to 23 minutes for in-person hearings.
The difference was much greater in disposition hearings, the juvenile court equivalent of sentencing, lasting 29 minutes in person and 70 minutes remotely.
Delays caused by technology averaged two minutes.
The study says the breadth of discussion was greater in remote hearings, with participants discussing 50% of applicable items, as determined by best practices derived from national guidelines.
The study found that the depth of discussion was statistically similar between virtual and in-person hearings with a few exceptions.
“Child placement and barriers to permanency were discussed in more depth in remote hearings compared to in-person hearings, while parents’ rights/process/permanency timeframes were and relative resources were discussed in more depth in in-person hearings,” the study says.
The commission has yet to meet or propose a rule draft.
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