A recent Bloomberg Law story by Jacqueline Thomson reminded me of the question posed by Richard Susskind a few years ago: Is a court a service or a place?” The pandemic and other factors suggest the answer is that fundamental fairness demands our courts be less of a place and more of a service.
The Bloomberg Law article highlights a unique case in which a senior federal district court judge sitting in a Boston courtroom was conducting a bench trial occurring in an Asheville, North Carolina, courtroom. The plaintiff, a former assistant federal public defender, sued the entire U.S. Court of Appeals for the Fourth Circuit. This resulted in all the judges in the Circuit recusing themselves. Senior Judge William Young, who is among a group of federal judges who volunteer to preside over cases remotely, was assigned the case.
The use of remote judges happens occasionally in the federal system. The volunteering judge can preside over an entire trial. Or the remote judge can handle pretrial matters and motions, returning the case to a local judge for the trial. The remote judges will only handle bench trials.
The use of remote judges who sit in locations other than where the matter is brought opens up a lot of possibilities
As a result of the pandemic, remote judicial proceedings have become more common across the board. But the use of remote judges who sit in locations other than where the matter is brought opens up a lot of possibilities. It’s no secret that caseloads among judges are uneven in the federal system. A matter in one jurisdiction can take years to resolve, while a similar matter in another jurisdiction can take months. The axiom “justice delayed is justice denied” typically holds true. A lengthy time to resolution is unfair.
In an ideal world, the time to resolve a case should generally be the same, irrespective of location. A litigant ought not to have to be burdened with waiting years just because they happen to be in a particular location. Location has nothing to do with justice or the merits of a case. Remote judging allows cases to be handled timely and more efficiently and equitably, irrespective of location.
When judges can’t do their best work due to time constraints, it’s unfair to the parties and the system
Moreover, remote judging reduces the workload on local judges in overburdened jurisdictions, improving the ability of the judges to handle cases effectively. Like all of us, judges do their best work when they are not overworked and overstressed. When judges can’t do their best work due to time constraints, it’s unfair to the judges, the parties and the system. Using remote judges to free up dockets can give overtaxed judges some needed relief and time.
And it’s not just the time to trial that is important to litigants. It’s the time to get to the resolution of various dispositive and evidentiary motions can be critical. The timely resolution of these motions can timely resolve the matter. At the very least, timely motion resolution allows the parties to perceive better the risks and exposure of the case and drive settlement.
Another reason to use remote judges to handle federal cases is that it would allow cases to be assigned to judges with subject matter expertise. It’s tough as a litigator to go before a judge who appears to know little about the underlying subject matter. You struggle with either trying too hard to educate the judge and appearing condescending or trying too little and risk leaving the judge a bit baffled. Particularly in complex cases, having an “expert” judge would be helpful to the lawyers and the litigants. It would also save time.
Some jurisdictions are so backed up that the wait for a jury trial can take years.
Yes, there are concerns. The judge can’t assess the body language as well remotely as they can in person. There can be technical glitches. There may be less respect for decorum. Frankly, I think most of the objections are overblown (For an excellent debunking of the myth that credibility can only be assessed by laying eyes on someone and their body language, see Malcolm Gladwell’s book Talking to Strangers). But in civil matters not involving a jury trial, I believe the balance tilts in favor of remote judges.
And many jury trials could be conducted just as well with a remote judge presiding and everyone else in a courtroom in a different location.It can even be argued that using remote judges for jury trials is even better than for bench trials. It offers the advantage of a more timely resolution; some jurisdictions are so backed up that the wait for a jury trial can take years. Indeed, since the jury is assessing the credibility of witnesses and is the ultimate. decision maker, the “inability to assess demeanor” objection is largely moot.
Having a remote judge only decide retrial matters and not actually try the case can also be a concern. I have never been a fan of having motions and pretrial matters handled by a judge who will not try the case. It often results in the trial judge not having a good handle on the nuances of the case and the parties.
But if my choice was waiting three years to get dispositive motions decided versus having a remote judge with time on their hands to timely manage pretrial matters, I would opt for the latter. In reality, at least in the federal system, there is no reason that nonjury cases could not be assigned to remote judges in toto.
And there are objections from those who handle criminal matters. But for those accused of a crime, justice delayed is all too often justice denied. The denial of justice due to delay falls particularly hard on those with limited means, who often languish in jail awaiting even their first court date.
Remote judging is ideally suited for federal district courts
Of course, remote judging is ideally suited for federal district courts. District judges are appointed, not elected. So, it should matter little where a particular judge is located. On the other hand, most state court judges are elected by constituents in the county where the judge resides. So, it is important for the choice of the voters to be respected.
And it’s fair for the county’s citizens to expect their matters to be conducted by judges whom a majority of the voters in the county have chosen. It’s true that defendants often do not get this benefit since they can be hailed into court in jurisdictions they have tilt contact with. But venue and jurisdiction concepts are designed as the check and balance to abuse.
Using remote judges to break bottlenecks and supply needed expertise is a step in the right direction to making our courts and judiciary a service instead of a location. We need to see more of this kind of thinking.