Updated on February 3, 2022
Last month we interviewed Schorr Law’s lead trial attorney, Zachary Schorr, to catch up on how the courtroom has changed since the COVID-19 pandemic. We discussed what had changed since then, what had stayed the same, his experiences with using videoconferencing to attend hearings and trials, and which of the two means of appearing (video or in person) he preferred. Here is our interview:
The first thing that comes to mind when thinking about how the courtroom has changed is the fact that Judges generally discourage, in person appearances. That’s not to say that they all discourage appearing in person; there are still a few Judges that continue to encourage, in person court appearances. When you do physically appear now, you have to wear a mask; there are less people in the courtroom, and glass dividers have been installed. There are dividers at the counsel table, on the witness stand, in front of the clerk, and in front of the Judge. The combination of dividers and face masks make the acoustics very difficult, so you have to constantly raise your voice for the Judge to hear you.
When COVID hit, the Courthouse decided to change their in-person appearances to video. When the video appearances first started, the Los Angeles County Superior Court (LASC) originally had their own video court system that was pretty behind the times. It later changed to Microsoft Teams, which was a good move – it is a much better and easier system to work with.
Judges generally appear on camera for court appearances these days, and it functions very much like the videocalls we are all now familiar with doing via Zoom and Teams. The Judges who appear on camera generally do so from the court room as opposed to chambers, so they still wear a mask. This makes it tough to read facial expressions. The Judges that are doing hearings from chambers are generally mask-less if no one is there. Unfortunately, there are still about 30% of judges that don’t appear on camera. This makes the hearing even more difficult because you have no ability to read the audience. The more tech savvy Judges are on camera, listening intently and using the videoconferencing to conduct meaningful hearings. The outlier Judges hiding off-camera can be frustrating to work with.
Unfortunately, there is no uniformity regarding what the Judges are required to do with respect to their appearance via video. You just have to be prepared for whatever happens. I always turn my camera on and wear a suit when I am appearing remotely with the expectation that even if I can’t see the judge, they can see me, and read my facial expressions. I treat it as if we can both see each other.
Since COVID came around, one of the major changes that came about is mandatory e-filing. This means that everything is filed electronically in most civil cases. That said, some of the judges who have been on the bench longer than others still require courtesy copies – so it is always important to check to see if judge solely wants electronic, or wants courtesy copies as well.
While the courtroom has changed in appearance, the procedure is still the same for motions and hearings. You file everything ahead of time, the Judge’s approach is the same, and the practice of law in the courtroom is the exact same. It’s the performance and the art of the argument that has changed. Arguably there may be more tentative rulings issued by Judges than there used to be.
Judges have the power to control their own courtroom. I have done at least four trials since COVID hit, and Judges are still wanting to see traditional binders for the most part. I present everything electronically, regardless, and I work electronically, but some still want traditional exhibit binders.
Fortunately, Stanley Mosk had TV’s installed in every room, so I have been taking advantage of that during trial for displaying exhibits.
The biggest challenge was not being in the same room as the witness. I think it is a bit unfair to the witness to ask them about exhibits that are not sitting in front of them for them to see in their entirety. Via video you are asking for the witness to comment about a document that they can only see on screen. They do not have the ability to go through it and flip the pages. You can use that to your advantage, but it can be cumbersome for the witness.
When I am doing something remotely over Zoom or another system I try to spend extra time going through the document with the witness and use the annotation (mark-up) tools to go through the documents.
The good thing is that it saves clients money in terms of not having the appearance in court. It saves the attorney time, too, which is great. The best part is that videoconferencing provides access for clients to attend virtually. We always encourage clients to attend and observe if they want to, so that is good too.
The bad part is there is nothing like being in the same room as someone – observing their mannerisms, observing their reactions, and reacting accordingly. You have to play to your audience and it is much more difficult to do via video.
I have done two trials in person these last couple of months. My preference, assuming it is safe, is to do it in person. It is easier to not have to worry about the video technology failing while you are presenting your case. That said, there are some real benefits to video trials because you now have great access to witnesses who can testify remotely. Right now, the courthouse halls and court rooms are full of activity – which suggests many people want in person trial and court appearances. I think that many of the judges also prefer an in-person trial. That said, California has enacted a new Code of Civil Procedure section to really allow for the proliferation of remote appearances and trials.
Generally, I prefer in person – it’s a very comfortable and familiar environment for me and I have been doing it for 20 years. That said, a hybrid can work at times if witnesses are afraid to come in, or if they have low availability. I like that you can now have witnesses appear via video, and they can be anywhere. That should never go away.
At one of my recent in-person trials, the defendant did not physically show up to trial. They appeared by telephone and I was still able to cross-examine them in the court room over the phone. It worked. I think remote witnesses are a game changer. This will be a very valuable tool forever. With greater witness availability, regardless of location, we will have a better opportunity to present key evidence at trial. I think hybrid trials will be great, where maybe 90% is done in person (with the attorneys in person), but you have the witnesses that can be reached out to virtually to get their testimony. In this instance, the courtroom has changed for the better.
I do. Jury trials are happening. Our last trial was a bench trial, but I was across the hall from a jury trial going on the entire two weeks that I was there. Judges are reporting that jury trials are going on, they are just having a little extra difficulty getting full jury pools. Instead of jurors reporting to the juror assembly room, they are now reporting directly to a court room. They are spacing the juries out, too, thought it may not necessarily be six feet. There is, I think, a full resumption of jury trials. Several judges have told me, in the course of hearings and discussions, that it’s a little bit harder to pick a jury and it’s taking a little bit more time because of COVID. They are trying to get rid of the backlog of trials, so they are happening and they are happening a lot.
While the courtroom has changed, and life as we know it, Schorr Law, a top rated real estate firm in California, continues to stay at the top of all of these changes and is adapting to the new norm. To schedule a consult and discuss your real estate matter, please give us a call at (310) 954-1877 or send us a message through our contact form.