June 2020 – Rainbow Willard participated in an interview with Brodies LLP Associate Johanna Boyd about “Global Views on Virtual Advocacy.” During the discussion, Rainbow provides perspective on the impact of COVID-19 on American Courts, and offers insights from her early experiences in a virtual hearing. A full transcript of the interview published on June 11, 2020 follows:
What is your experience of virtual court rooms since the outbreak of COVID-19?
Nearly every court in the United States has seen its operations impacted. The United States Supreme Court heard oral argument via teleconference for the first time in the Court’s history on 4 May 2020.
In New York federal courts, many judges have updated their rules of practice to provide alternatives to in-person appearances. Some judges already used teleconferences for hearings and they have now expanded this practice significantly.
In New York state courts, particularly those seated in New York City, the switch to virtual proceedings was more complicated. Initially, only “essential” proceedings (none of which were commercial) were handled virtually. State courts outside of New York City are undertaking a phased reopening. New York City courts continue to handle matters virtually.
In federal and state courts, the most significant impact has been on jury trials. The United States Constitution contains provisions that protect the right to jury trials in civil and criminal cases, meaning that they are required in most cases if parties exercise those rights. Courts have yet to resolve how to fairly conduct a jury trial virtually. As a result, jury trials in New York courts have been on hold.
We also have a busy arbitration practice and arbitrators have been willing to conduct hearings virtually. These hearings have gone off without a hitch.
Do you think this is going to result in a permanent change for the way your court system works in the future?
After undergoing a “trial by fire” of audio and video conferencing, courts and arbitrators are observing that virtual proceedings are extremely convenient. It is likely that both are here to stay for many types of proceedings.
However, this experience has been a good lesson that there is no replacement for in-person proceedings in some circumstances. For example, where witness credibility is a key issue, when there are concerns regarding witness sequestration, when a critical piece of evidence cannot be examined virtually and when a jury trial is required.
Do you have any top tips for appearing in a virtual court?
View the entire interview between Johanna and Rainbow on Brodies LLP’s website.
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