Remote litigation is becoming the new normal. Photo: Rocketclips/Shutterstock.com.

It took a global crisis, but Florida litigators and jurists are embracing technology in ways they never have, conducting oral arguments and other court proceedings online—and many of these COVID-19-induced adjustments could be permanent.

There's no reason why hearings can't continue remotely once life gets back to normal, according to Broward Circuit Chief Judge Jack Tuter, who said he's received "rave reviews" from judges after securing 100 new video conferencing licenses with emergency funding from the Florida Supreme Court.

"Using such technical advances reduces costs, travel, the stress of all that is involved in getting to a courtroom," said Tuter, who also thanked staff and lawyers for their understanding and cooperation. "The end result of all of this may have a positive impact on how court hearings are conducted well into the future."

While the Florida Supreme Court has been live-streaming its arguments since 1997, it's considering looping in video conferencing technologies so that lawyers can make oral arguments remotely in May.

'Virtual courthouse'

Miami-Dade Circuit Judge Jennifer Bailey is leading an impromptu pandemic work group for the court's digital division—covering most non-criminal cases—which she said could be "a real game changer."

"The consequence of all this is going to be that technological innovations that have been called for, for the past several years are going to become much more widely available," Bailey said. "Let's face it, judges have been reluctant even to use telephone conferences in lieu of live appearances. We're all going to become much more comfortable with the idea of remote appearances."

The court has bought new webcams and video conferencing licenses, and is addressing bandwidth issues and training staff who aren't tech savvy.

"We're designing and building a virtual courthouse, and we hope to do the whole thing in 10 days, so it's a challenge," Bailey said. "I know folks out there are impatient for specific solutions, but while we're trying to negotiate licenses and trying to finance it, we don't want to make promises that we can't keep until we have our solutions locked down."

Bailey said that time is necessary to ensure procedural fairness and avoid digital mishaps, which have happened. One judge at the U.S. Court of Appeals for the D.C. Circuit missed about six minutes of oral arguments when a spotty internet connection dropped him from a phone conference.

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But Miami attorney Aliette H. Carolan of the Carolan Family Law said she isn't worried about connectivity issues.

"If you're in a hearing and connection is lost, I think you just call the person back or try to reconnect," Carolan said.

Aliette Carolan of Carolan Family Law. Courtesy photo.

The biggest obstacle, she says, will be maintaining the rules of evidence and procedure and the sanctity of the record from afar. The Florida Supreme Court has solved one of those problems for now, with an administrative order allowing witnesses to be sworn in remotely.

Carolan said the shift is "fantastic" news for many small and midsize firms, who could save time and money litigating remotely. She also runs Cut the Conflict, a platform aimed at getting divorces done online.

"We've been hoping for this for years," Carolan said. "I don't have to travel and sit in a court lobby because the hearing before mine ran late and now I'm sitting there for two hours. That's going to save my clients money right away."

Carolan's advice for older or less tech-savvy attorneys: "It's always a good idea to have some millennials on your staff who will walk you through the process."

Working remotely should be a positive, not a negative, according to Podhurst Orseck's Peter Prieto, who said state and federal judges "will be some of the unsung heroes of the coronavirus crisis."

Online trials?

For Miami lawyer Judd Rosen of Goldberg & Rosen, said the recent outbreak has made it easier to check in with clients, and to handle administrative tasks and website maintenance.

"Now is the time to settle," according to Rosen, who said he's helped resolve three cases through Skype mediations, and would even like to see mini trials and arbitrations piloted online.

"Imagine if all the jurors could do jury duty from home? How cool would that be?" Rosen said. "I'm not against it."

That said, some aspects of litigation have to be physically seen, felt and heard. When the defendant in one recent trial questioned whether Rosen's client, the plaintiff, was really a hard worker, for example, Rosen showed the jury his client's hands.

"We let the jury feel his hands so they could see that he had calluses on his hands," Rosen said. "You're not going to be able to do that online."

Coral Gables litigator Danielle Cohen of Cohen Law said she hopes remote litigation will supplement and improve existing procedures in future, but not totally replace them.

"We, as trial lawyers, have a difficult enough time keeping the attention of a juror when they're standing 20 feet away from us," Cohen said. "I can only imagine how difficult it would be to keep attention when they're in front of a laptop instead of in person."

It's been "an adjustment, to say the least" for Cohen, who's working from home with two small children, but it's helped that her firm was already paperless and using remote servers.

"If you're a law firm that was still using paper files and didn't have the entire office on an electronic platform, whether you're 100 attorneys or one attorney, transitioning to a remote environment is going to be far more difficult, if not impossible," Cohen said.

For attorneys and judges looking to adapt to using video platforms, the American Board of Trial Advocates' South Florida chapters are offering free webinars.

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