Remote Court Hearings (Past, Present, And Future): Arizona's Next Steps for A New World to Enhance Access to Justice

Abstract

In this article, the COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup (“Plan B Workgroup”) provides an update from its prior efforts, building on the Post-pandemic Recommendations: COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup, 75 SMU LAW REVIEW FORUM 1 (2022). This article focuses on the Plan B Workgroup’s February 2022 Recommended Remote and In-Person Hearings in the Arizona State Courts in the Post-Pandemic World and developments after those Recommendations.

This article begins with an introduction and background of the Plan B Workgroup, including its prior work products both during and after the pandemic.

The article then discusses the Workgroup’s February 2022 Recommendations, which provide comprehensive suggestions for which types of trial court hearings should presumptively be held remotely and which should be held in person. These Recommendations address all case and hearing types for Arizona’s general jurisdiction courts (the superior court) and limited jurisdiction courts (municipal and justice of the peace courts). The article discusses the process used in developing the Recommendations, the key definition of “remote” court hearings, advantages and challenges of remote court hearings, concepts that support the Recommendations, suggestions regarding their approval, adaption, adoption and implementation and the critical need, suggested by the Plan B Workgroup, for feedback and periodic evaluation after their implementation.

The article then highlights the consideration and adoption of the Recommendations by the Arizona Judicial Council and the Arizona Supreme Court, as well as adaption, adoption, and implementation by Arizona’s trial courts. This discussion also highlights initial analysis during the first months after implementation, as well as related educational efforts.

The analysis that follows is based on various surveys, both national and targeted, regarding remote hearings in 2023 in Arizona, both of members of the State Bar of Arizona and Arizona’s state courts. The two Arizona surveys repeat, either verbatim or nearly so, surveys in 2021 of the same groups. These comparisons, particularly for the surveys of Arizona’s state courts provided in this article for the first time in print, are particularly significant.

As described below, the survey results (and statistical data in the twenty-six justice courts in Maricopa County, where Phoenix is located) show that remote appearances are significantly improving appearance rates, both as perceived and as demonstrated by hard data over a five-year period. These survey results also show a broad acceptance and appreciation of the advantages of allowing for remote appearances for client and lawyer efficiency and access, as well as reduced cost to litigants. These survey results also evidence a need for training, education, access to technology, the need to bridge the “Digital Divide,” and continuing concerns about how to continue to further effective access to justice, given an enhanced role of technology in the courts.

The article then describes potential next steps, including accounting for the fast-changing world of generative artificial intelligence (AI) and its potential for enhancing access to justice.