Remote Litigation Tips: A View From the Bench with Judge John Tran

Episode Notes

Transcript

Sharon D. Nelson: Before we get started, we’d like to thank our sponsors, Alert Communications, The Black Letter Podcast, Scorpion and Smokeball.

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Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts. Both legal technologists, authors, and lecturers invite industry professionals to discuss a new topic related to lawyers and technology. You’re listening to Legal Talk Network.

Sharon D. Nelson: Welcome to the 167th edition of The Digital Edge: Lawyers and Technology. We’re glad to have you with us. I’m Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity, and digital forensics firm in Fairfax, Virginia.

Jim Calloway: And I’m Jim Calloway, Director of the Oklahoma Bar Association’s Management Assistance Program. Today, our topic is Remote Litigation Tips: A View From the Bench with Judge John Tran. Our guest today is the Honorable John Tran who became a Circuit Court Judge in Fairfax County, Virginia in 2013. Prior to his appointment to the Bench, Judge Tran was a state and federal prosecutor in Alexandria, Virginia, and later a litigation partner in the Alexandria law firm of DiMuroGinsberg PC. In addition to his duties as a presiding judge in the Nineteenth Judicial Circuit, Judge Tran has served on the Virginia Supreme Court’s advisory committee on the rules of court and is a member of the Boyd-Graves Conference. Thanks for joining us today, Judge Tran.

Judge John Tran: Well, thank you for inviting me to spend this time with you and your listeners. It’s a nice break to be surrounded by the tech community in the legal profession.

Sharon D. Nelson: I know that’s where you feel at home. Everyone seems to acknowledge that virtual technology is more in use now in the courts than it was before the pandemic. How did that start out? How did it come to be and how well do you think it’s worked out overall, Judge?

Judge John Tran: Well, you know, virtual technology came to be used because of COVID and the resulting lockdowns. It left us no choice but to use virtual technology. It’s been successful because we measure success by the use of technology and during 2020, that success was especially shown because we were able to keep our courthouse open for business during the pandemic. It’s worked well, but, you know, it has room for growth in some places of the country, and the courthouse doors were opened sooner and wider than Fairfax. Over time as the schools and businesses turned to virtual technology, our lawyers and litigants began to display an accelerated acceptance of technology. So, I believe that it will grow.

Jim Calloway: You have mentioned a desire on the part of some judges to go back to the old days in terms of technology. Do you think that’s likely to happen?

Judge John Tran: Yes, there are judges who prefer to return to the old days. This is likely another example of what physicists refer to as the laws of inertia. Please don’t ask me to repeat the three laws, but resistance to change, you know, it’s often successful at the beginning of every new age of human evolution. Most of us want all the good and familiar things in our world to never end or never change, but life rarely affords you that luxury. So, the answer is yes. There are many who want to return to the old days. There are a lot of good things about the old days that we should continue, but the change having arrived I believe will remain and expand, and today our Chief Judge has two monitors on her stand-up desk and types with all ten fingers. So, the court is changing.

Sharon D. Nelson: Yeah, I think this is one tidal wave that is going to just cover the beach here because there’s so many advantages to remote technology, and I know you feel the same thing. So, what are some of the advantages to lawyers and to their clients of using this technology, Judge Tran?

Judge John Tran: Well, you know, at this very moment the one big advantage is the advancement of public health. If the legal community can obtain a legal remedy without forcing their clients and witnesses to come out into the public space, it’s a good thing. I hope that the concern about being infected by a virus will not be a permanent or even longstanding reason for using technology. The use of technology is proven to be convenient and capable of providing greater access to the court.

For example, prior to the pandemic as the recently as 2019, right, a lawyer wanting to argue a 10-minute motion or prepare for a 10-minute status conference had to negotiate Northern Virginia traffic to get to the courthouse and arrive at least 30 minutes ahead of the hearing, find parking, get through security, and then wait in a crowded courtroom.

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The amount of time spent could be as much as two hours. That same lawyer can now wait in the comfort of the office or home. So, that’s the advantage. By the way, during the pandemic, more so than before from a Virginia courtroom, I’ve heard from witnesses across the United States and even from other countries in different time zones, and even across the river, some complained that an appearance through remote technology removes that intangible human connection that exists in an in-person appearance. To an extent that may be true, but a remote appearance is far better in terms of providing that intangible connection than when we were asked to watch a video deposition or listen to a lawyer, read a transcript, and over time I had been persuaded by hearing from those remote witnesses, and over time as more judges get comfortable with hosting remote trials they’ll get used to determining credibility over a screen as opposed to watching a witness 20 feet away sitting on a witness stand.

Jim Calloway: Well, and I’m sure the clients will appreciate not paying for the time for parking and clearing security and all that as well, Judge.

Sharon D. Nelson: Yeah, we’ve talked about that quite a bit.

Jim Calloway: Any other frequent complaints you hear from lawyers about remote proceedings, and is there any validity to some of them?

Judge John Tran: Well, I think it’s a fear of the unknown and a feeling of a lack of control over the proceedings. Ironically, yesterday I had to get my wife’s book club up on a remote meeting, all right, and the computer audio just wouldn’t work, and that’s what it concerns the lawyers when they confront that situation, then they feel as though they’re going to lose their opportunity at having a hearing and they can’t control what is going on. That is a valid complaint.

Sharon D. Nelson: Technology has its glitches, and our sound editor here, we were talking about that before we got on this podcast, that sometimes there are just all of a sudden blips or something goes down and there’s not anything you can do about it, at least briefly, so I can see where that could be very frustrating to folks.

Judge John Tran: But I have to share with you that the most talented trial lawyers are the ones who aren’t bound by a script. They understand that part of their success is the ability to react to the situation as changes happen, and if they took that kind of perspective in terms of putting on a trial and applied it to technology, many of these complaints will be overcome.

Jim Calloway: And many of us have learned we have two of everything we need, so at least one of them works, right, Judge?

Sharon D. Nelson: Amen to that.

Judge John Tran: That’s correct.

Jim Calloway: Before we move on to our next segment, let’s take a quick commercial break.

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Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is Remote Litigation Tips: A View From the Bench with Judge John Tran. Our guest is the Honorable John Tran who became a Circuit Court Judge in Fairfax County in 2013. Prior to his appointment to the Bench, Judge Tran was a state and federal prosecutor in Alexandria, Virginia, and later a litigation partner in the Alexandria law firm of DiMuroGinsberg PC.

Jim Calloway: In 2020, Judge, there were a lot of complaints about our courtrooms. Each courtroom seemed to have different rules as everybody was trying to come up with how video and remote work. Are there a lot of procedural differences between the judges in your jurisdiction? That’s one of the complaints we sometimes hear.

Judge John Tran: There are differences, but mostly the differences comes to questions of confidence and comfort using remote technology but, you know, that’s why the practice of law is not a science.

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And that’s why when we talk about those excellent lawyers, we’re talking about the lawyers who know the differences do exist in the courthouse and they’re ready to work with those differences or find a way to persuade a reluctant Presiding Judge that procedures that are not commonly used would work well if given the opportunity.

We want to be uniform in our application of procedures because every Judge believes that it’s important. That’s one of the reasons why we all wear one black robe is so that litigants should be able to come into every courtroom and expect to receive the same sort of treatment and access to the fact-finder. But once again, the experienced lawyer knows that some fact-finders need to hear their facts differently than others. And now, we will see that because some judges for example regularly hosts what are known as hybrid trials where you have people in the courtroom and people outside the courtroom, some judges find it very difficult to host the hybrid Trial. And that’s at the end of the day, the lawyer’s job is to determine how best to persuade that particular fact-finder if it’s trialed before a judge as opposed to a jury.

Sharon D. Nelson: I remember years ago hearing Judge Bruce Baca say that he had 16 judges and 32 personalities and I think that’s what the lawyers feel like they are having to deal with too. But one of the things I know you’re really good at, Judge, is giving some of your favorite tech tips for lawyers who are using remote technology. So, take that away and let us know what some of those really cool tips are?

Judge John Tran: Well, I did think about the fact that when I was talking about tech tips, the program that I put on for the Fairfax Bar took about an hour-and-a-half, and he only gave me 25 minutes.

Sharon D. Nelson: Give us the cream of the crop?

Judge John Tran: Right. The best advice I can tell you is to use remote technology daily in your personal life and, you know, in the past, Trial lawyers were told, in order to prepare for Trial, you should practice your storytelling to your friends and family. We were told to practice our opening and closing, practice asking direct and not leading questions, using those six magic words, Who, What, Where, When, and How, and learning how to be a good listener and a conversationalist. So that’s what we’re told. You want to practice for Trial, practice out there.

That’s the same thing for remote technology. As I mentioned yesterday for example, my wife asked me to put up her book club on a remote meeting and our desktop audio just didn’t work and I knew that there are many reasons why the audio doesn’t work and there are many workarounds. The simplest workarounds restart the computer as most of us will do, I started, tried to play around with the application really wasting my time. But then it occurred to me, I should just restart the computer and while I was restarting the computer, I was looking around our house and I was thinking about the options we had. We had iPads, we had tripods, we could put it on. I could think about whether or not I would have her wired in or if she uses a wireless AirPod.

We also have these Jabra speakers at home that I had brought from the courthouse and I was thinking about all these options because I had used all these options at the courthouse and I used them at home when we had glitches as occasionally occurred. But the good news is, is that what technology has shown us is that the best way to recover from any glitch is to reboot.

So that’s one of the reasons why human beings sleep and that’s what I encourage of our lawyers. Use it in your regular life so that you won’t encounter all those problems that you think you will encounter at a Trial, a witness whose video is not working, a witness whose audio is not working, the lack of pausing just to let the sound complete its cycle, and the ability to share documents on the screen. If you use it on your personal life, you’ll be more than comfortable in terms of using it at Trial.

Sharon D. Nelson: That sounds like good ideas for our listeners.

Jim Calloway: Judge, I’ve been told that in the Fairfax County courts, litigants and lawyers are now in constant contact with the law clerks, is that a good thing or a bad thing, and have there been any problems you can relate to this?

Judge John Tran: Well, I’m from that modern view of the bench about being accessible to the public and litigants, lawyers are the public. So, not only has there been a greater access to the law clerks, but there’s greater access to the courtroom clerks as well, those clerks who help us during a Trial, that improved access allows for many procedural questions or doubts to be answered in advance of the hearing so that the litigants can now and the lawyers can now focus on these factual and legal issues important in their case rather to worry how did they go about presenting their case.

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I have also had a sense that since the attorneys have been able to open up a line of communication earlier, they’ve been able to resolve many minor issues more quickly that will then allow them to resolve the major issues. And when we’re told in advance, as we are now told, that the parties have resolved their differences, that’s freed up the court to deal with other contested matters that may be on a holding docket.

So, I have a sense that many cases settle sooner because they’re in touch with us and we answer some questions that can help them decide whether or not they should proceed with the Trial or not. The downside is that some lawyers forget about that civility and exposes the court to the bickering between counsel that is often concealed from the court. We sometimes see that, but they are the exception and not the rule.

Sharon D. Nelson: It sounds like overall it’s been a good thing, so we’re glad for that. But we have heard of some ethical problems with lawyers using remote technology, for instance, to coach clients and possibly committing other unethical acts, what have you or your fellow judges seen or heard about and how do you handle these things when they happen?

Judge John Tran: So, we haven’t yet experienced ethical lapses with any significant number. I can’t recall an incident, but I’m thinking to myself when people raise these issues that the legal profession like the world at large contains unethical people and even at some aspect of the criminal element. Sharon, when you were President of Virginia State Bar, you understood that’s the importance of having regulatory agencies because then we release the conduct of licensed professionals and we take away their license. And there’s a reason why we have prisons, but I’m going to put aside the important topic of prison reform for another day.

My observation is that at the end of the day most people and most lawyers do the right thing and sometimes they make mistakes but ultimately our legal system and our system apply in the rule of laws constructed on this principle of having faith that the rules are going to be observed. And I believe that that’s the sustaining miracle of democracy, right?

We put up speed limit signs. We believe that most people will observe them within five or ten miles. But over time, you’ve seen, there is a number of people who will completely ignore speed limit signs and there are people who are going to ignore their ethical obligations, and when we catch them in their lapses, there are going to be consequences and sanctions. Fortunately, that hasn’t happened with us.

Jim Calloway: Okay. Before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today, our subject is Remote Litigation Tips: A View From the Bench with Judge John Tran. He became a Circuit Court Judge in Fairfax County in 2013. Prior to his appointment to the Bench, he was a state and federal prosecutor in Alexandria, Virginia and later a litigation partner in the Alexandria law firm of DiMuroGinsberg PC.

Judge Tran, do you think lawyers are sometimes less respectful when they are remote? I have certainly heard some anecdotes and read anecdotes online about that sort of thing.

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Judge John Tran: I’ve heard them and have read them as well. Again, the same was my experience with unethical behavior. That’s not been my personal experience in terms of the lawyers who appear before us. At the very beginning, I’ve had some lawyers who actually presented themselves standing up and so I caught them, I said, “Are you standing up?” and they said, “Yes, because we’re used to addressing you standing up.” They’ve had to learn how to address the court while sitting down because remote hearings work really, really well, but it’s not made for people standing up.

I want to give a shout out to the legal community of Virginia, especially the Northern Virginia area. That’s where I am most exposed to members of the Bar. Our bench is so fortunate to have this constant stream of quality lawyers, and more importantly, quality people who happen to be excellent lawyers there before us and the quality and professionalism of our Bar is evident on a daily basis.

The best examples have shown themselves not during remote, but really during telephone conferences. We are using almost exclusively telephone conferences to schedule dates at what we call our calendar control hearings, and the person on this line can’t see us but still that hearing is conducted as though it was conducted in courtroom. They act respectfully toward us. They sometimes don’t act respectfully towards their opposing counsel but once again, we’re talking about exception to the rules, maybe we received 20 such calls a day, 5 days a week, perhaps out of those 100 calls, there may be one or two times when I’ve had to remind counsel that they need to speak to me, not speak to each other and the way in which they speak to each other should be done the way it is. It is of small percentage of time that weeks can go by before anything like that happens. But I will say this, the number of disrespectful lawyers in the Bar as a whole, they haven’t gone away and I’ve found that some lawyers who were disrespectful to the court when they were in-person were disrespectful when they were remote and then when we had in-person appearances, when they came back, they were still disrespectful. They had this common character’s trait that this is a clinical way.

Fortunately, the rest of the Bar acts the way they act in front of us when they are remote, there are some hiccups. Sometimes, they’ll talk to each other, so especially if there are multiple lawyers in the same room, they’ll talk to each other and forget that their audio is on, and unlike a courtroom we can hear them, right? In the past, they used to be 30 feet away down the well and they can speak to each other all day long, but now, they don’t mute their microphones, we can hear them. But it’s not a sign of disrespect, they just forget that the technology works differently.

Sharon D. Nelson: It sounds like our lawyers are by and large doing very well.

Judge John Tran: I think you found that when you were President of the Bar, didn’t you, Sharon?

Sharon D. Nelson: Well, of course the people who came to my attention, back in those days, where the people who were in trouble with the Bar, so I had an undue focus on the troublemakers and miscreants, but my view is a little different.

Judge John Tran: You’ve got a lot of volunteers. You’ve got a lot of volunteers to help you run the Bar.

Sharon D. Nelson: Oh, absolutely. Absolutely. But, you know, it’s the troublemakers who make the headlines and you have to deal with and that sometimes is difficult and you don’t like to get calls from Virginia lawyers weekly about those lawyers who are misbehaving that those are difficult conversations to have with the journalist.

Judge John Tran: Yes, they are.

Jim Calloway: Well, for our final question, Judge Tran, we had all hoped that we’d be in a much better place by now, but it looks like we’re going to wait a while longer before our pandemic morphs into an endemic. So what are your predictions for how remote technology will be used in judicial proceedings, both in the short and the long term?

Judge John Tran: And by also apologizing to your audience is that we didn’t get to spend 25 minutes talking about tips on how to be more effective in remote technology. I’m all for putting on that program, but I believe that it is best done in small groups of maybe 15 or 20 at a time and actually going through and experiencing the use of the technology rather than through a podcast. So, I’ve given up predicting the future, whether the future is five years from now or what will happen next month. That’s a hard lesson the pandemic has taught us, right? I never thought we were going to be where we are back in March of 2020. I would like to see remote technology continue to be used because I believe that it would improve our lives and ensure greater access to the courts.

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I know that some of the members of our population, for example, have a hard time getting to the courthouse because they don’t have a car and the Fairfax Courthouse is not easily or conveniently located to Metro and some of those members of our community will take hours out of their time to get before us and they are usually in a financial situation or jobs that don’t give them the flexibility of coming whenever they want to.

I have found that some of those people who may have trouble getting a ride to the courthouse have been able to get their hands on smartphones or iPads and been able to project and present their case whereas in the past, this just won’t show up. I’ve heard from judges across the country that the level of defaults have lowered since they started having remote technology because people have been able to appear and air their grievances or answer a call without overwhelming their abilities. I hope that every scheduling conference and hearing, addressing purely procedural issues remain remote. It does two things, it gives the lawyer’s practice in using remote technology. It is convenient, it is less expensive than having to travel to the courthouse, and I hope that in every Trial or hearing, there will never again be a necessary witness whose appearance is only 10 minutes, but was forced to spend hours outside the courtroom waiting to be called, and we’ve had that — we’ve had that in past cases.

In a recent case where we’re putting on witnesses and one of the parties alert me that there is a witness, it’s one of those bridge witnesses. You need them to link the chain of evidence up, but that witness needed to appear remote, be reached out, the witness appear 10 minutes was done and the witness was able to go about their day. And ultimately in the very long term and unfortunately, well beyond my time in the bench, I believe there will come a time when we will have full-fledged jury Trials, a hologram from the comfort of our homes.

Sharon D. Nelson: Well, that sounds like one of your predictions, Judge Tran. I want to thank you for joining us today. I look forward to those hologram Trials although probably not in my time. We’ve enjoyed very much, Jim, and I conversing with you and I know you’re a very busy fellow and you and I have had the opportunity to take part in many of those small groups, teaching people about how to use the courtroom technology. It’s been a great pleasure there, and thank you very much for taking time to join us.

Judge John Tran: You’re welcome and from two of my television heroes in the past to the two of you and your audience, I’ll say two things, live long and prosper, right? And if you are one of those tech warriors and you’re fighting to keep the change going and you’re fighting against the tide, I say to all of you, make it snow.

Sharon D. Nelson: I love it. And that does it for this edition of The Digital Edge Lawyers and Technology. And remember, you can subscribe to all the editions of this podcast at legaltalknetwork.com or on Apple podcast, and if you enjoyed our podcast today, please rate us in Apple podcast.

Jim Calloway: Thanks for joining us. Good bye Ms. Sharon.

Sharon D. Nelson: Happy trails, cowboy.

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Podcast transcription by Tech-Synergy.com