Videoconferencing: Has the Future Arrived?
Juries do not seem to mind remote appearances by witnesses.
By Fredric Lederer
IF WE WERE taking a legal technology quiz, one question might be:
Which of the following has occurred?
A) Sitting in Portland, Ore., a U.S. district judge presides over a hearing in which counsel and jury are in a courtroom on the East coast and the witness testifies from Florida's 9th Judicial Circuit in Orlando;
B) Counsel argues her federal appeal in a remote hearing room to a panel of judges who appear before her via a large television monitor;
C) An expert witness appears live from London on a large plasma flat screen located behind the witness stand in the U.S. courtroom;
D) Slipping on a one-piece composite suit and tie overshirt, counsel argues his motion in limine from his desk via two-way Web cam. Then, waiting for the court to dispatch its ruling by e-mail, he pulls off the overshirt, and clad only in pajamas, prepares for the remainder of the day;
E) Counsel steps before the podium to argue his appeal; two judges appear remotely, each life-size via a television monitor; one grills counsel extensively;
F) Appearing before the mediator via Internet-based remote video, one party launches into a furious tirade, only to be told gently that the party has been disconnected and will only be permitted to continue after regaining the party's composure.
All of the above except D and F already have occurred -- and the remaining two may have occurred by the time you read this article. A, C and E took place in the Courtroom 21 Project McGlothlin Courtroom at the College of William and Mary. (The Courtroom 21 Project explores the use of technology to improve the administration of justice in the world's legal systems.)
B is an ordinary occurrence in the United States Court of Appeal for the Second Circuit. Web-based two-way counsel arguments are being pioneered, and remote mediation experiments were conducted by the Courtroom 21 Project four years ago, with more sophisticated work to take place in 2001. Choice D -- an remote appearance from home --isn't quite here, yet.
Established H.320 ISDN-based videoconferencing now is dependable, high quality, and useful for all pre-trial and court purposes. Poor resolution and unacceptable audio delays are a thing of the past, although some systems still have an audio delay.
Current capabilities were demonstrated, for example, in Oct., 1999, when the Courtroom 21 Project assisted CBS Evening News with a demonstration of a high technology jury trial. Using two Tandberg H.320 video conferencing systems, a federal district judge presided from Portland, Ore., while a witness testified from Orlando, Fla.
The judge, sitting in his own high technology courtroom, appeared life-size in Williamsburg, Va., in a monitor behind the bench. The witness, testifying from Florida's ninth judicial circuit, also appeared life-size in a plasma monitor, on the wall behind the witness stand.
Newer H.323 standard Internet-based systems will provide even higher functionality, ranging from limited resolution and image for inexpensive systems acceptable for pre-trial purposes to high quality technology useful for all purposes. Video technology is changing rapidly and can only get better.
With the arrival of H.323 equipment from Enlighten Technologies and PictureTel, expected this month, Courtroom 21 will have the capability to have six concurrent remote appearances. Adding Internet functionality from technologies such as Ringtail Solutions CourtBook, an entire trial can be moved into virtual space.
To a large degree, use of video communications by litigators is limited not so much by technology or cost, but rather by lack of familiarity and, sometimes, understandable caution. Relative-ly few lawyers have had the opportunity to evaluate current video options, although a significant number of lawyers have used remote deposition technology.
Effective use means understanding the available options including their uses, effects, and any risks involved, both practical and legal. Like any form of communication, videoconferencing is affected by the connection. A "noisy" telephone call is one thing; garbled remote testimony from abroad is another matter entirely (although that is unlikely in our experience.)
Of potentially greater concern is the psychological impact of remote appearances. Preliminary experiments at William & Mary demonstrate that remote witnesses will not damage verdicts (results are identical with those that occur with in-person witnesses). But we still need more experimental work to confirm that remote testimony is truly safe, from the litigators' perspectives. Also, we know nothing, yet, about the psychology of remote motion or appellate argument. Is a remote appearance as persuasive (or more so) than in person? And of course, it's all moot unless and until local laws admit such appearances.
Indeed, legal rules are changing as the new technology advances. For example, Federal Rule of Civil Procedure 43(a) expressly permits remote appearances. Proposed changes to the Federal Rules of Criminal Procedure would permit remote first appearances, arraignments (common in the states), and remote witness appearances. The impact of the confrontation clause in criminal cases remains uncertain.
However, despite the decision of the Florida Supreme Court in Harrell v. State, 709 So. 2d 1364 (Fla. 1998) permitting such testimony, some critics have voiced concern that the ultimate result of all this is that a case may be moved entirely to cyberspace. Would that violate (or limit) the public's right to attend trials?
The more important question might be whether the public will accept trials as fair, if they include substantial remote appearances. Of course, this should not be a problem with remote counsel appearances, whether at trial or on appeal.
Whether viewed from the personal perspective of the litigator -- who wants to make the most effective use of limited time and resources -- or the client -- who wishes to minimize expense -- courtroom technology just makes sense.
Lawyers and judges ought to seize upon any technology that enhances efficiency and diminishes expense while maintaining both the utility and accuracy of our procedures and the respect to which fair adjudication is entitled.
The latter is, of course, the concern. There is more to litigation than efficiency. The Hippocratic Oath says, "First do no harm." It is entirely reasonable for litigators to be concerned equally for the client's case and the legal system.
Yet, having said that, the initial results are far more than encouraging. Indeed, while we have been busy answering our cell phones and e-mails, we may have missed the main event. The real future -- the future of integrated voice, video, and other data -- has arrived, and our world is changing forever.
Fredric Lederer is chancellor professor of law and director, Courtroom 21, William & Mary School of Law.