By Maria Raciti.
“I’m here live. I’m not a cat.”
Coming home from a particularly grueling day at law school (but I mean, what else is new?), I headed to bed with a tub of ice cream in tow. I was all set to binge The Office for the tenth time in a row when I received a text from a friend asking, “Have you seen the cat lawyer video?! .” Not knowing what she was talking about, but liking the sound of it, I googled “cat lawyer video.” Sure enough, a video with over a million views popped up. Much to my delight, the video was everything I hoped for and more. If you have not seen it yet, do yourself a favor and watch it right now. I myself have watched it at least thirty times.
Zooming in for a hearing, Texas lawyer Rob Ponton, more commonly known as “cat lawyer” nowadays, never expected that he would be the one on trial. While he was fully prepared to defend his client, telling the judge “I’m prepared to go forward with it,” he first had to defend himself. For you see, poor Mr. Ponton was not sporting his usual suit and tie. In fact, he was not wearing anything at all. An adorable little kitten with big green eyes full of tears took up residence in his Zoom frame. Whenever Mr. Ponton spoke, the kitten’s lips moved, naturally begging the question, was Mr. Ponton a cat? As it turned out, he was not. He was using his assistant’s computer, and his assistant’s thirteen-year-old daughter had installed a cute Zoom kitten filter. But concerned that the judge would not believe him, Mr. Ponton vehemently argued his case: “I’m here live. I’m not a cat.”
While hilarious and harmless, this video stirred my curiosity. When the coronavirus pandemic hit, courts across the country had to adapt just like everyone else. Judges began holding proceedings online, believing that this virtual world was their “new normal.” With courts contemplating the use of remote technology even after the pandemic settles, the country, particularly judges and lawyers, need to know what impact these proceedings have on the judicial system.
How fair is virtual justice?
Desperately needing comedic relief after the draining year we survived, Americans everywhere love hearing about the wild incidents that occur in virtual court. Notable incidents include cat lawyers, snoring lawyers, cigar-smoking lawyers, half-dressed lawyers in bed, clients holding beers, clients in the nude, etc. But not everything is fun and games. There is certainly a darker side to this virtual legal system. With research showing that “holding hearings and trials by video feed can harm parties appearing remotely”—for example, studies have shown that judges set bail higher and deport more immigrants when proceedings are online instead of in person—this darker side needs to be at the forefront of the conversation as courts contemplate keeping proceedings remote even after the pandemic settles.
One of the main obstacles virtual courts face is technological snafus and the unfortunate implications and repercussions that may come with them. Every person who has ever used a virtual platform, be it Zoom, Teams, WebEx, etc., knows how important it is to have high-speed internet. Without a stable connection, the virtual conversation will quickly deteriorate. Be it latency, frozen screens, poor quality audio, or meetings getting disconnected, technological problems abound when you do not have good WiFi.
Now imagine experiencing these issues while in court. As the defendant is speaking to the judge about his case, answering the judge’s questions, his screen freezes. He tries his best to resume the conversation, logging back into the portal, but the same thing happens every two to three minutes. He’s getting frustrated, and even worse, he can tell the judge is getting frustrated. Will these feelings impact the judge’s ruling? Who knows? While judges are supposed to be impartial, not allowing technological problems to influence them in any way, they are human too. They have a job to do and an essential part of that job is determining if the defendant or witness is telling the truth. It is difficult for judges to suss out the credibility of these individuals when they cannot hold a conversation for longer than two minutes. I mean, can anyone really contend that an emotional testimony does not lose effect when interrupted every two minutes?
And then there’s the question of what the individuals are doing while attempting to log back into the portal. Are they texting their lawyer to get a good answer to the question the judge just asked? Are they googling something they shouldn’t? Are they conspiring with other witnesses? When in person, judges have a lot more control over their courtroom. They are able to sequester third-party witnesses in the hallways outside the courtroom, observe the defendant’s demeanor as he testifies, and ensure that attorneys are not coaching their witnesses. They obviously cannot do any of these things in virtual court. Sure, they can utilize break-out rooms and attempt to sequester witnesses there, but once again, what happens when these witnesses are disconnected from meetings? No one knows. And that uncertainty may seep into the judge’s ruling. Even if the individuals who were frozen or disconnected abided by the rules when they were off screen, speaking with no one, the judges do not know that. Having been around the block once or twice, a more cautious judge may doubt the integrity of the individual’s testimony.
Seeing the potential effect that technological problems may have on the outcome of the case, it becomes clear that people with poor internet connection are put at a disadvantage. And the people most likely to have the worst internet connection are the ones who are already at a disadvantage, namely, impoverished defendants. Whether the defendants do not have a computer because they are homeless, they share a computer with a bunch of other people, they lack the digital literacy necessary to attend virtual court, or they have terrible internet connection, they face a unique set of problems that wealthy law firms with a phenomenal internet connection and an IT staff at the ready do not. This inequity broadens the already growing gap between the poor and the rich in the legal system.
Zooming into the future
As judges, lawyers, clients, and witnesses continue to navigate the new terrain that is virtual court, they ought to attempt to remedy the downsides of this system. After all, while it’s true that virtual court has a number of benefits, such as saving time and money, these benefits do not necessarily outweigh the pitfalls. If you are a lawyer, you should inform your client of the risks of virtual court, providing them with alternative options like waiting the pandemic out or settling out of court. And if you are a judge, you should do your best to keep your frustration with connectivity issues out of the equation. While these remedies are in no way exclusive, they are at least a start.