The Future of Virtual Proceedings in the Federal Courts

Abstract

The federal courts are notoriously hesitant to modify their procedures and policies. Much of this “small c” conservatism is driven by a concern that their rules be “trans-substantive” and suited to a wide range of circumstances. For years, they stubbornly resisted allowing remote proceedings and similar uses of technology in the courtroom because of concerns that permitting them could affect the quality of lawyering and decision making, compromise the safety of jurors and witnesses, and diminish the public’s perception of the courts. The COVID-19 pandemic abruptly changed this, forcing judges to alter radically the way they conducted proceedings. Nearly five years later, the legislation allowing courts to make these changes has expired, and many federal courts across the country have returned to the pre-pandemic status quo. However, the courts’ rules committees are considering whether to implement longer-term changes. This Essay presents the findings from the first qualitative study of federal judges’ experience with virtual proceedings during the pandemic. In twenty-eight in-depth interviews with federal judges and clerks of court, we explored how different district courts adapted to the pandemic, seeking to understand the judges’ perceptions of the shift to virtual proceedings and their views as to whether and to what extent the courts should continue to permit them going forward. Our goal is forward-looking: to understand what lessons were learned from the changes forced upon the courts during the pandemic and which new practices should endure. As others have pointed out, the pandemic presented a unique opportunity for much-needed innovation within the judiciary, and its unexpected and rapid onset forced the courts to bypass the typically glacial pace at which they consider and implement change. We suggest that the Federal Rules of Civil Procedure should be amended to allow judges to rely upon virtual proceedings more frequently. We argue that at least some of the rationale for prohibiting or severely limiting the use of such proceedings has been superseded by advances in technology, and that expanding judges’ discretion to permit their use in civil cases would increase access to justice and help to restore the public’s perception of the judicial process.

Keywords: Virtual court proceedings, COVID-19 pandemic, judicial adaptations, Federal judges, Access to justice, technology, Federal Rules of Civil Procedure, Federal courts, procedural conservatism