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The COVID-19 pandemic and the courts — Aggravation or opportunity?

6 minute read

An empty courtroom is seen at the New York State Supreme Court in Manhattan, New York City, U.S., August 21, 2020. REUTERS/Andrew Kelly

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Depositions and hearings have gone virtual. Jury selection is often conducted remotely, as are some trials. Evidence can be presented via videoconferencing and other digital means. Trials are televised to media and the public using closed-circuit television, and information about almost everything the court does is available online.

Today, hybrid arrangements allow some in-person court participation, but many problems persist. For example, case backlogs, already large before the pandemic, continue to grow; evidence-sharing and storing of digital files are often a logistical hassle; and even though virtual court participation is technically possible, low-income citizens don’t always have access to computers or a reliable internet connection. In fact, a 2020 study by the independent research group BroadbandNow estimates that as many as 42 million Americans currently live without access to high-speed broadband, an increasingly essential prerequisite for accessing employment resources, educational materials, telehealth services, and virtual or remote court proceedings.

Virtual improvements

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Still, despite these challenges, it’s also true that technology has improved many aspects of the American justice system. In a recent Thomson Reuters report on the impact of the COVID-19 pandemic on state and local courts, 42% of respondents said they felt virtual hearings had increased access to justice, including 49% of county and municipal court participants, where backlogged civil matters are a source of constant distress. That stands in contrast to the 23% of respondents who felt that virtual hearings decreased court access, likely because virtual participation requires technology that many people still do not have.

These statistics aren’t surprising. For people who live in rural areas and have adequate internet connections, the option of virtual participation means not having to drive for hours or miss a day of work to meet with a lawyer or make a court appearance. Virtual convenience in turn has resulted in better attendance at pre-trial and trial hearings, as well as greater participation by all parties overall, particularly in civil court. With more online resources available, pro se litigants – those who opt to defend themselves in court – have greater access to legal support services, procedural guidelines, docket schedules and digitally stored evidence. Technology has also streamlined many of the day-to-day operations of the court, simplifying the process for everyone.

A better system for all

Much more can and should be done to improve future court services, of course, but many judges and attorneys are reluctant to change any more than they have to, an attitude that also needs to change.

Consider the problem of access to justice. On August 10, the US Senate passed the Infrastructure Investment and Jobs Act, which will provide $42.5 billion to fund broadband network deployment in remote areas that currently have little or no service. This build-out of America’s wireless infrastructure will also accelerate the availability and adoption of 5G networks all over the country.

Why is this important? Because even if low-income individuals don’t have access to a computer, almost everyone has a smartphone. According to the Pew Research Center, 97% of Americans own a cell phone of some kind, and 85% own a smartphone (up from 35% in 2011). Soon, then, lack of access to court information will be a thing of the past, and anyone’s ability to participate in court proceedings of all kinds will be only as far away as the nearest cell phone.

Another set of issues that technology can address involves the collection, submission and storage of digital evidence. Currently, many courts are overwhelmed with the explosion of multimedia evidence coming from mobile devices, body-cam videos, audio files, computer hard drives and many other sources. Storing and securing all that data is an increasingly expensive undertaking, and even if a court’s storage and security are adequate, using the data effectively can also be a challenge.

These issues aren’t surprising. In the Thomson Reuters survey, 72% of respondents said they continue to submit proposed exhibit and hearing bundles to the court via email, 64% work in jurisdictions that still use paper and less than one-third use file-sharing platforms.

An even newer normal

Technological solutions capable of improving court performance now and in the future are only being used by a relatively small handful of tech-savvy courts. More widespread adoption of such tools would expand access to the justice system for millions of Americans and provide courts with an efficient, cost-effective way to future-proof themselves against a wide variety of unpredictable social disruptions.

A more efficient, user-friendly court system also would go a long way toward addressing case backlogs, which plague almost every court in the land. How much more efficient would the courts have to be in order to eliminate backlogs? Well, according to our research, the average number of cases handled by individual courts every year is 12,309, and the average current backlog is 1,274 cases. If the courts were just 10% more efficient, then backlogs too would eventually disappear, enabling more timely trials and hearings, and reducing the number of stalled proceedings.

In-person jury trials will always be necessary in some cases, of course, but attorneys who have suspended jury trials under the assumption that “normal” proceedings will soon resume are kidding themselves. What once began as a series of hybrid work-arounds is now a more or less permanent feature of the modern court system, so reluctant attorneys need to adapt. Not only is adapting a practical necessity, the American Bar Association has gone so far as to suggest that attorneys have an ethical obligation to consider virtual jury trials and other creative procedures in order to expedite logjammed court proceedings and provide litigants with a swifter path to justice.

Reimagining justice

The past year has given US courts an extraordinary opportunity to reimagine how justice in this country is managed and administered. As we all know, the justice system has always been slow to embrace change, especially when it comes to technology. But the pandemic has also shown us that, if necessary, the system can and will adapt and evolve with remarkable speed, continuing to operate even under the most daunting circumstances. The fact that remote hearings and other forms of virtual participation have already improved court efficiency and expanded access to justice for so many is yet another indication that today’s burgeoning technologies have an important role to play in the courts of the future.

Technology can’t solve every problem, of course, but it can help create a more resilient, responsive court system that works for the American public in ways the current system does not and never has. The persistence of the pandemic is a tragedy, of course, but where the courts are concerned it can also be viewed as the much-needed push to continue developing a more flexible, future-proof justice system that works better and more efficiently for everyone. And today’s rapid technological advances are making this transformation not only possible, but inevitable.

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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Thomson Reuters Institute is owned by Thomson Reuters and operates independently of Reuters News.

Steve Rubley leads Thomson Reuters portfolio of business across federal, state and local government customers and is responsible for the company’s strategic direction and execution of new growth initiatives in the government sector. Rubley also serves as CEO of Thomson Reuters Special Services (TRSS), a US subsidiary of Thomson Reuters that provides content and software solutions into the specific federal government customer base.

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