Texas Courts Should Embrace Zoom Hearings, Even in a Post-Covid World

In what feels like a different lifetime, I practiced civil litigation in Texas. For those unaware of how the court system is split (at least in Texas, but generally, from my understanding, in other states as well), there are essentially two main court systems: criminal and civil. The criminal system is, predictably, court cases dealing with crimes. In those cases, the entity initiating the case is the government. That’s why often you’ll see something styled as “The State of Texas v. John Smith” or “The People of the State of California v. Orenthal James Simpson” or whatever. The government is a party because the government is trying to deprive the defendant (that is, the person being prosecuted) of life, liberty, or property. I want to be upfront that I never have and never will practice criminal law. I don’t know enough about it, and frankly I don’t care to know too much about it because then I might have to actually answer the questions I get asked by people looking for a nickel’s worth of free advice.

On the other end of the spectrum is civil law. These are called lawsuits and generally involve two or more private entities (that is, not the government, though sometimes the government is a party to a civil case) duking it out over whatever. Often these cases are one of three types of case: a) personal injury cases such as car wrecks, slip-and-falls, or other injuries arising out of negligence; b) a commercial case such as breach of contract; or c) family law like divorces and custody arrangements. There are myriad other civil cases, but those are really the three primary types. I have experience in all three in one capacity or another, and let me tell you, they can be a headache because of court issues.

For starters, there’s the sheer size of Texas. Texas has 254 counties encompassing 268,597 square miles of terrain varying from oceans to mountains to deserts. When one becomes licensed to practice law in Texas, that person is allowed to practice in every state-, county-, and municipal-level court in those 268,597 square miles. That means a lawyer in Tyler could be due in court for a case in El Paso, 733 miles away. As you can imagine, this creates all sorts of issues that are potential wastes of time and money. There’s deciding on driving or flying, booking a flight, renting a car, booking a hotel, rescheduling other things, finding people to cover you while you’re gone, and many other logistical items that all may be for naught if the judge decides not to show up to work that day.

Then there’s the disorganization that some courts exhibit. Sometimes court coordinators, court clerks, and even judges are unfathomably disorganized. Maybe they forgot to put you on the schedule, or maybe they haven’t read any of the materials filed in the case, or maybe they have something going on at home that is distracting them, or maybe they don’t like your firm, or maybe they don’t like where you’re from (which, trust me, is a real thing. If you don’t believe me, go to a courthouse in Austin and wait until some lawyer tells a judge they’re from Dallas and see what the judge’s reaction is). Whatever the reason, sometimes you spend hours preparing for the hearing and traveling to court, not to mention the money you spend on the same stuff, and judges can cancel hearings on a whim. Nothing making airport whiskey taste better than when a judge (or someone in a court’s admin office) wastes your time and money, which you then have to explain to an understandably upset client.

I don’t know how much money is wasted on these things every year in Texas, but I’m willing to bet it’s a staggering number. Pre-Covid, when I was practicing litigation, I can tell you I spent dozens of hours and hundreds of dollars in cars and airports for what turned out to be huge wastes of time.

One huge, bright, shiny, silver lining of Covid has been the advent of Zoom and other telecommunication methods that allow lawyers, clients, judges, court administrators, witnesses, bailiffs, and many other people to save time, money, and headaches by avoiding the hassles and headaches associated with travel and preparation for court. People don’t have to arrange travel, people don’t have to reschedule as many things, people don’t have to waste twelve hours in a car or airport if a hearing gets canceled….heck, people don’t even have to put on real pants if they’re computer camera’s are positioned correctly.

I want to make clear that I don’t think jury trials should be conducted over Zoom (which is the catchall term I will use for video telecommunication software in general). For one thing, that basically forces the average person to own a computer with the camera and processing power to have a high-quality video call for hours on end, and I don’t think it’s feasible for that to happen yet. Additionally, jurors can’t be trusted to pay attention as well if they are in their jammies in the comfort of their own home. Pets, spouses, children, out-of-town visitors, postmen, door-to-door salesmen, and even a TV left on high volume can all disrupt a juror doing their duty from home. Not to mention you’re putting your faith in people to ignore their phones, social media, and other daily distractions while some boring dude in a suit drones on about the subtler nuances of contract law. Texas has tried it already and the only positive thing to really come from it is that several people have some good stories to tell at parties when Covid is over.

But for non-jury things, Zoom should be an option going forward, irrespective of Covid. It will save time and money for those involved as well as taxpayers. It may ding the airport bar and moderately-priced hotel industries a bit, but I’m sure they’ll recover. The point is that, when you think about it, it’s actually a little ridiculous that Zoom hearings weren’t widely offered before Covid. We are as advanced a civilization as has ever existed on Earth, but it took a worldwide emergency to realize that people shouldn’t have to spend hundreds of dollars and time away from family for a fifteen-minute hearing that might get canceled if the judge didn’t get their coffee that morning.

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