Guidance for Virtual Proceedings: Where the Rubber Meets the Road

July 31, 2023

"red car on asphalt road in summer"Last month, the Colorado Supreme Court issued official guidelines for virtual participation in trial court proceedings, allowing litigants, victims, witnesses, and attorneys to attend virtually. In adopting an official policy, the court joins other states that have also recognized the importance of clear policies regarding virtual proceedings, including Arizona, Michigan, and Minnesota. This guidance is of critical importance, but it is also just a first step toward ensuring that this recent transformational change in our court system—for the benefit of the court, their users, and society—continues. 

Prior to the pandemic, IAALS partnered with the National Center for State Courts and the Civil Justice Improvements Committee to develop 13 recommendations that were a nationwide call to action to transform our state courts to meet the needs of litigants today. Those recommendations, detailed in the report Call to Action: Achieving Civil Justice for All, were adopted by the Conference of Chief Justices and the Conference of State Court Administrators by resolution in 2016. One of the recommendations recognized that courts “must take all necessary steps to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services.” Key to this access was a call to judges to “promote the use of remote audio and video services for case hearings and case management meetings.” 

Yet before the pandemic, these efforts to increase access and mitigate the many obstacles that can deter people from pursuing or defending their rights on a daily basis made minimal progress. As the Colorado policy recognizes, the “COVID-19 pandemic changed that.” Colorado courts relied heavily on virtual proceedings, as did courts around the country. The pandemic was a unique challenge and opportunity that forced courts to modernize in a way that they were not incentivized to before.

Colorado’s new policy aims to establish consistency across the state’s judicial districts and recognizes the many benefits of virtual proceedings. The benefits are well documented, as the Colorado Supreme Court highlights, from reduced costs and increased convenience for litigants to expanded reach and cost savings for attorneys. In fact, virtual proceedings have demonstrated higher participation rates in several states. What this increase in participation by litigants highlights is that what may be inconveniences to some people—finding transportation or child care or coverage at work—are barriers to justice for many. During IAALS’ Paths to Justice Summit Series, participants discussed the efficiency of virtual procedures, particularly in the pre-trial process. Procedures such as status conferences, pre-trial conferences, and motions hearings can often be conducted virtually unless a party objects or credibility is a concern. 

These benefits can be particularly impactful in high-volume caseloads, where barriers can be the greatest—and innovation can be the most impactful and transformative. This is also true for rural areas, where these benefits are not just about access to the courthouse but about the very limited access to legal services. For those who live in “legal deserts,” people have reached a crisis point in finding legal assistance for the problems they encounter—with devastating personal consequences. In addition to increased access for litigants, we have seen the additional benefit of a decrease in travel and waiting time for attorneys, enabling them to represent a larger number of people and to serve broader geographic regions. A recent report from the Colorado Access to Justice Commission’s 2021 Statewide Listen and Learn Tour provided an example of the barriers, as well as the benefits of virtual proceedings:

One Colorado Legal Services (CLS) attorney who serves the vast southeastern corner of Colorado, which encompasses ten counties and two judicial districts, described having turned away an eligible client because the judge assigned to his case would not permit any virtual proceedings, and she could not drive the 3.5 hours each way to appear in person for a 15-minute scheduling hearing. Luckily, a different judge who was open to virtual appearances took over the case, allowing the CLS attorney to represent the client.

The takeaway is undeniable: virtual proceedings have increased people’s abilities to resolve the legal problems that are having significant impacts on their lives, the lives of their family members, and society. 

The Importance of Consistency—for Lawyers and Litigants

The Colorado Virtual Proceedings Policy provides that certain proceedings be conducted in person, including trials and criminal arraignments, and provides for presumptively flexible appearances “unless the court finds good cause to require a person to appear in person” for other proceedings, including case management conferences and status conferences. When considering a motion to allow someone to appear virtually for a designated in-person appearance, there is a list of factors to consider in determining whether good cause exists, including cost and time savings to the party, transportation limitations, impact on employment, case complexity, technological barriers, and access to childcare.

As courts and judges implement these policies—in Colorado and across the country—the importance of consistency and access must remain paramount goals. IAALS’ work has demonstrated the importance of consistency, from our Redefining Case Management project to our Paths to Justice Summit Series. Ensuring uniformity in court practices—rules, procedures, staffing, and technology, including that which facilitates virtual proceedings—greatly benefits everyone involved in the process. Both litigants and attorneys need a reasonable understanding of what is expected of them, and these expectations need to be consistent and predictable. Participants of the Colorado ATJC Listen and Learn Tour “emphasized that more uniformity in court forms and processes across judicial districts would make recruiting attorneys to take on cases in rural areas easier.”

Uniform information on expectations and the process are particularly important for self-represented litigants, who are rarely familiar with court processes and procedures. Processes need to be intentionally built for users to ensure consistency, predictability, and fairness. Litigants shouldn’t have vastly different experiences—and vastly different justice—across different courts and in different jurisdictions. Consistent court procedures not only ensure greater efficiency and effectiveness, but they also help foster broader public trust and confidence in our judicial system. 

Building off these directives, the next step for courts and judges is to work together to ensure that remote hearings are conducted consistently, with access and fairness at the forefront. There is a critical opportunity to do even more to establish consistent approaches, develop tools and guidance for litigants, and continue the critical benefits that we have seen from innovation resulting from the pandemic. 

The Importance of Data 

This is also a critical moment to consider what data is gathered on user experiences and the use of virtual proceedings. Some valid concerns have been raised regarding remote proceedings, including the digital divide. As additional research is done from the perspective of the court users, we can continue to learn and improve the virtual experience to ensure fairness and access for all. This data will also provide insights into where virtual proceedings are being used consistently, and where they are not.

People need to be heard, respected, and capable of getting a just resolution to their legal problems—not just in theory, but in actual experience. Virtual proceedings have highlighted the many barriers that exist to just resolutions while also providing an impactful solution. When conducted accurately, securely, and consistently, virtual proceedings have proven to be an effective means of enhancing the functionality of our justice system. With this directive, the Colorado Supreme Court has taken a commendable step towards promoting access to justice. Where the rubber meets the road is how it is implemented. This is a moment to encourage innovation, evaluation, the establishment of best practices and shared resources, and proper resources to bridge the digital divide. It is a critical moment for the court, the judges, and everyone in the legal community to support implementation so as to support access to justice for all.