Is it time to consider making court fully remote?

I am an older millennial. I did not grow up completely online the way that Gen Z largely has and the way that Gen Alpha appears to be doing even more. I remember dial-up and chat rooms. I did not get a cell phone until college and I took notes in law school in a spiral notebook. When I started practicing law in 2008, I had to make multiple copies of pleadings to be mailed to the court, with a return envelope for a conformed copy to be mailed back to me after the court stamped and received it. The rapid changes in how law is practiced and how intertwined the internet has become in day-to-day law has been a learning curve for me and has probably been even harder for those who started before me.

Then COVID came. Nearly all our law businesses went remote. Meetings were all by phone and Zoom. Depositions took place in front of laptops. Mediations happened online. Even the courts were doing hearings and mandatory settlement conferences entirely remotely.

During COVID, I adjudicated a five-day remote arbitration before a three-arbitrator panel entirely from my office. Witnesses appeared remotely; the arbitrators appeared remotely; and all documents were shared on screen or sent to the necessary individuals by email before the start of each day's session. A couple of witnesses were financially hard-pressed so my firm purchased them basic tablets that could be used for their live video examinations and added a limited-period internet service to ensure smooth connectivity. The few hundred dollars in costs for that were a fraction of what travel and lodging would have cost for their appearances in court.

We all (or nearly all) got through it professionally. And for many of us, we have only begrudgingly returned to the old way, while maintaining as much of the post-COVID remote style of practice as we can get away with.

The technology is here to conduct all court proceedings, including trials, online. Students at all levels of academia--including graduate-level courses--take important exams online in locations of their choosing with software that keeps them on camera and ensures that they are not looking at outside sources during tests. The same could be done with jurors.

Nearly all case filings are accomplished electronically now. Court filings are already in the cloud and in secured servers. Most of the legal and administrative work of courts is done nearly entirely on computer, electronically or by phone. There would obviously be additional costs to expand this and increase security, but those costs would be minimal relative to the savings of not maintaining physical courthouses.

Substantial benefits would accompany a move to a near-fully remote court system.

1. Increased access to justice

One of the strongest arguments for remote courts is increased access to justice. Many Californians face barriers to attending court in person, including transportation costs, work obligations, childcare responsibilities and long travel distances--especially in rural counties. Remote hearings conducted through secure video platforms allow individuals to participate from their homes or workplaces, making it easier for people to defend their rights without missing work or traveling long distances.

2. Cost efficiency

Maintaining large courthouse facilities requires substantial public funding for building maintenance, security, utilities and staff. By shifting more proceedings online, the state could reduce these overhead expenses and allocate resources toward improving digital infrastructure, expanding legal aid programs or reducing case backlogs. Electronic filing systems already used by courts across California demonstrate how technology can streamline administrative processes.

3. Efficiency and case management

Scheduling hearings through online platforms can reduce delays caused by crowded court calendars, late arrivals or logistical issues. Judges and attorneys can review documents electronically and hold shorter procedural hearings without requiring everyone to travel to the courthouse. This flexibility can help courts process cases more quickly and reduce backlogs.

This is not to say that a move to remote courts would be without issue or that certain matters would not still require a physical court setting. The Confrontation Clause of the Sixth Amendment requires that, in criminal prosecutions, a defendant has the right to be confronted by witnesses. The Fifth and Fourteenth Amendments also require confrontation as part of due process. While remote and video confrontation of such witnesses arguably could satisfy these requirements, in matters involving the possible deprivation of liberty, in-person trial may still be the just route. In certain civil matters, parties may decide that they prefer to present their trial in person. There is no reason this could not be an option for parties that want to pay for such setup. Civil litigation is already expensive and if parties determine that the value of conducting their trial in-person is worth the added expense of funding a court location and paying the travel costs of necessary personnel, that can be part of the budgeting calculation all lawyers already make.

There is value in the connectivity of in-person workspaces (like court), in physically being around those deciding or assisting in one's case, and in the potential persuasiveness of speaking directly to a judge or jury a few feet away. As with nearly all things, however, humans are very apt to adapt, and new skills and connections may and will arise through a remote court system.

Change can be hard; but efficiency compels us to progress. During COVID, some counties such as Alameda conducted a number of jury trials remotely with positive results. Various arbitration groups, including AAA, already default to arbitrations being conducted entirely remotely unless both parties stipulate otherwise.

The efficacy that has been demonstrated since COVID in the legal community's ability to adjust to remote practice requires us to finally start to ask: Is it time to consider making court fully remote?