Empathy and Remote Legal Proceedings
51 Southwestern Law Review 20, 2021 (Symposium on Courts in the COVID-19 Era).
20 Pages Posted: 26 Jul 2021 Last revised: 18 Feb 2022
Date Written: July 24, 2021
Do remote legal proceedings reduce empathy for litigants? Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants. Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may be borne out by future studies. However, there is as yet no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings. In some situations, remote proceedings may even increase empathy. Nevertheless, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers. We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.
Keywords: Law and technology, Psychology and Law, jury decision-making, judicial decision-making, criminal procedure, Zoom, bail hearings, immigration hearings, trials, demeanor, emotion and law, remorse
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