Judge Emily Miskel discusses Texas’ approach to remote proceedings and explains why we may see permanent changes to courts, even after COVID restrictions are lifted throughout the state.
State Bar of Texas Podcast
Judge Emily Miskel has served as judge of the 470th district court of Collin County, Texas, since...
In 1999, Rocky Dhir did the unthinkable: he became a lawyer. In 2021, he did the unforgivable:...
After a year of remote court, how are judges, lawyers, and litigants doing? State Bar of Texas podcast host Rocky Dhir talks with Judge Emily Miskel, vice chair of the Texas Supreme Court’s Remote Proceedings Task Force, about the many innovations in Texas courts throughout the past year. Judge Miskel highlights the advantages of remote court and its ability to increase access to justice for many litigants, and predicts what newly established systems will remain in place in the future, even after courts fully open.
Judge Emily Miskel has served as judge of the 470th district court of Collin County, Texas, since the court was created in 2015. In 2020, she began serving as the Local Administrative District Judge of Collin County, and has coordinated the courts’ COVID response, keeping courts running during the pandemic.
Intro: Welcome to the State Bar of Texas podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.
Rocky Dhir: Hi and welcome to the State Bar of Texas podcast. If this past year of the COVID has taught us anything, it’s that Texas and its judges have been embracing and mastering technology and the range of its possibilities throughout the entire pandemic. Case in point, Judge Roy Ferguson in West Texas who in our March 2021 episode regaled us with the story of how he helped Lawyer Rod Ponton navigate the now beloved cat lawyer incident. Judge Ferguson and Mr. Ponton’s humorous and historic interaction did not occur in a vacuum. In our May 2020 episode, we learned from David Slayton that Texas was the very first state in the union to provide high security Zoom accounts for all of its judges.
In case you missed that episode, David Slayton is the administrative director at the Texas Office of Court Administration but that was not the only first for Texas during the height of the COVID-19 pandemic. As it happens, May 2020, the very month that we heard from Mr. Slayton, marked another first brought to us by the Texas Judiciary the first jury trial on Zoom. Now to be precise, it was a summary jury trial, not a full jury trial and we’ll learn about that distinction in just a moment.
But first, let’s meet Emily Miskel, that’s Judge Emily Miskel to most of us. She’s the judge who presided over that historic Zoom jury trial but her work on technology and the delivery of justice neither begins nor ends there. You could say her work began as an undergraduate at Stanford where she majored in mechanical engineering learning about design and processes and doing that thing that all of us lawyers hate hearing, math. After graduating from Harvard Law School, Emily, she was still Emily back then, achieved a double board certification from the Texas Board of Legal Specialization and became an authority on legal technology topics ranging from e-discovery to data theft.
In 2015, Emily Miskel became the Honorable Emily Miskel, judge of the 470th District Court in Collin County, Texas. Judge Miskel serves on the Texas Judicial Council which makes policies for the Texas Judiciary and on the Supreme Court Advisory Committee. Now, she obviously is very generous with her time because she serves in a number of other capacities as well but Judge Miskel is apparently not busy enough because she was recently appointed Vice Chair of the Texas Supreme Court’s remote proceeding task force, a body that was formed by the Texas Judicial Council to explore the future of online court proceedings and the innovations that our judiciary can take with it from the COVID-19 pandemic.
Judge Miskel has been kind enough to take time out of her obviously very busy schedule to talk to us about remote courts and the work of the remote proceeding task force. Judge Miskel, welcome.
Judge Emily Miskel: Hi, I’m happy to be here.
Rocky Dhir: Absolutely. So first and foremost, what’s the summary jury trial? I feel like a first year law student again. I’m like what? What is this? So explain to us what that is and how that differs from the full-on jury trial that people think happened in your online Zoom jury trial.
Judge Emily Miskel: Sure. So a summary jury trial is an alternative dispute resolution proceeding and it’s actually been in our Texas law for decades. As a lawyer, when I was doing my mediator training, it’s in the same chapter in the Civil Practice and Remedies Code. And as a lawyer, when I read it, I was like why would anyone do that? Why would you do a jury trial that doesn’t even count? But now as a judge, I see the benefit of it. So in Collin County much like many counties in Texas, your trial judges have extremely busy dockets. And so, it’s commonly been the practice in Colin County that if you say for example you need two weeks for your civil jury trial, we require you to do a summary jury trial first. And so, I can explain what that is?
Rocky Dhir: Yeah, please.
Judge Emily Miskel: So a summary jury trial is basically a one-day version of your case. So you show up, the district clerk provides you with regular jurors from the county jury pool, you pick them and then you put on a one-day version of your case. They deliberate, they return a verdict and then you get to talk to them about what worked, what didn’t, did they like your client, did they hate your expert. Based on that, you go to mediation the next day and attempt to settle your case.
Rocky Dhir: Interesting. Okay. So now you’re saying that all the judges in Collin County use this if it’s going to last –
Judge Emily Miskel: I don’t know if all the judges do but it’s been a common practice in the civil trial world in Collin County.
Rocky Dhir: Okay. So now I’m wondering after you said that you read it in the CPRC. Does that mean that you kind of rediscovered this or has this been a practice even before you became a judge?
Judge Emily Miskel: It was a practice before I became a judge.
Rocky Dhir: Oh wow. Okay. So now when you did this this Zoom jury trial, what was that experience like?
Take us back to the lawyers, how you prepped for it. I’m sure you didn’t just wake up one day and say let’s do it let’s do a summary jury trial on Zoom and come on everybody, let’s get this party started. There had to have been some thought put into it. So walk us through that.
Judge Emily Miskel: Yeah, just roll out of bed and hit join meeting. No, that’s absolutely not what happened. But it is kind of amazing to look back and see how quickly we did it.
Rocky Dhir: Sure.
Judge Emily Miskel: So I think I had done my first bench trial on Zoom in March and then in April, mid-April, I got the request from the Office of Court Administration to see can we figure out a way to test a jury trial on Zoom. And of course, anyone can come up with concerns or all the ways that that wouldn’t work but I wanted to focus on, well how can it work, how can we figure it out. And so, —
Rocky Dhir: That’s the engineer in you.
Judge Emily Miskel: Exactly.
Rocky Dhir: Yes, I can see that now, okay.
Judge Emily Miskel: So I said, well what about a summary jury trial because it’s non-binding so if the whole thing goes down in flames, no one is hurt, it’s something we already require so it’s not adding cost or expense to the litigants so it’s a relatively risk-free way to test an online jury trial. And so, we got the request in mid-April and we made it happen on May 18th. So I put it together in about a month which is kind of crazy to think about but yes, absolutely, a lot of work went into it.
Rocky Dhir: When the Office of Court Administration called you with this request and said can you please put on a Zoom jury trial, did you ever think to ask why me? Why are you making me do this? I mean, it is kind of my irreverent way of asking how did you get selected for this particular task from the office.
Judge Emily Miskel: Well as lawyers, we all know that the prize for doing good work is you get more work to do right? So I had been early on willing to try things with technology to figure it out so when the COVID shutdown happened the very first week, I was working with Office of Court Administration to test any platform. We looked at Discord. We looked at Zoom. We looked at how can we figure this out. And so, there were group of judges like Judge Roy Ferguson that you mentioned that were known to be willing to help and give things a try.
Rocky Dhir: See, this is why I’m not a judge because I would have been like, look things are shut down, I’m going to sit back and watch Netflix all day. But you guys all got together and decided it was time to keep the wheels of justice rolling. I mean, talk to us a little bit about what was going through your heads when COVID hit? You’ve made it look really easy but I’m sure it wasn’t. What was that process like for you guys when you guys were meeting about this?
Judge Emily Miskel: I think you’ve seen a lot more experimentation from state court judges compared to federal court judges and I think many attorneys may not realize the volume of cases that we have to get through. So I get over 2,000 new cases every year. So basically, every day I show up to work I have to finally dispose of nine cases just to stay even with what’s coming in the door. So on average in a month, I’m trying to hit between 175 to 200 cases disposed of. If you shut down for a week, that’s 50 cases I have to do on a different week on top of my other 50 that I already have to do that week. And so, I think your state court judges right away realized it’s impossible to take a month off. We’ll never catch up. We have to figure out a way to keep going.
Rocky Dhir: Well, although in theory and again, I’m playing the lazy devil’s advocate all right. So in theory, COVID would have been a great excuse to say, well things shut down, we’re just going to play it by ear. You guys obviously didn’t do that. So was it just a matter of clearing the dockets? Was it access to justice? What were some of the underlying motivations that kind of kept you guys trucking through all this?
Judge Emily Miskel: Well obviously, we care about justice. That’s why we run for the office of judge and do all the work that it takes to be elected. And so, one thing about being in a trial court is you look into the faces of the people that have very important cases in front of you and so, we have people’s family law cases. We’re dealing with their children, with their homes, all the other sorts of very important cases that people have. And so yeah, number one, we got to keep up with our workload but number two, every day, we look into the faces of the people that this is very important to and we take that seriously.
Rocky Dhir: I think most judges, hopefully all judges, share that sentiment. But then, I’m sure you got some blow back about doing things virtually as opposed to in person and the drawbacks that could come out of that. So without naming names, was there a lot of pushback from other members of the judiciary, even members of the bar as a whole?
Judge Emily Miskel: Of course. Absolutely. And I think the pushback comes for two reasons. One is the law is a very conservative profession. It’s slow moving, slow to change. And that’s a good thing, right? We don’t want the law just swinging wildly back and forth with new trends so it’s understandable that we want things to be cautious and considered. And so, everybody that works in the system has that very skeptical of change, skeptical of new mindset so that’s just built into our system.
And then the second thing is, lawyers become very familiar with the skills they’ve developed to do things in the courtroom and they are concerned about whether the online experience will be the same, will it be as good, will we be able to do the things that we know how to do like cross-examine witnesses and work with exhibits, how is that going to work? And when it’s new, you have to spend time reaching out to people to explain how is that going to work.
Rocky Dhir: Sure. Now once you did this this online summary jury trial, what was the feedback you got both from the lawyers as well as maybe from the jury members, just everybody involved, how did they feel that that went?
Judge Emily Miskel: Yeah, so it’s interesting because going into it when I was talking to people about the concept pretty much across the board, lawyers were just horrified positive that this can never work.
Rocky Dhir: Right. I can see it.
Judge Emily Miskel: Then afterwards, I can talk about the feedback from two groups. One, the lawyers and two, the jurors.
Rocky Dhir: Please.
Judge Emily Miskel: So I’ll talk about the jurors first. We had on our panel of 12 jurors for our virtual jury trial four had served previously in person and so, that was great. We asked them compare and contrast. What’s the difference?
Rocky Dhir: Sure.
Judge Emily Miskel: You know jurors tend to be a little older and what they said was, in the courtroom, they can’t see the witness very well. They’re sitting far away from the witness. The witness is usually facing sideways to the jury box. And so, during the witness’ testimony, they didn’t get as good of a look at the witness’ face, facial expressions and things like that. So the jurors, when they compared it to an in-person experience thought they could better judge the witness’ credibility on Zoom because they could see their whole face and all of their facial expressions very clearly. I know that lawyers going into it were afraid that the opposite would be the case that how can you judge a witness’ credibility on Zoom.
The jurors felt that it was a better experience. They also felt that they could see the exhibits better because in the courtroom, you may have one screen, it may not be very close to the jurors, attorneys try to do the easel, no one can see anything that’s on an easel. On Zoom though, the exhibit is screen shared and everybody is looking at the same thing at the same time and the jurors expressed that they could see the video when it was being offered as opposed to in the in-person trial, they pretty much had no idea what was going on in the video until they watched it later in the jury room. So that was unexpected but that was their feedback.
Rocky Dhir: Well it’s interesting if I could just ask real quick about the credibility issue because the documents I think I’m with you there. They see the documents that’s on their screen. When it comes to the credibility, okay so yeah, they can see the whole face, but on Zoom you can’t often tell if somebody’s fidgeting. So I could be telling a lie and being very uncomfortable and fidgeting underneath the screen but it’s off screen whereas in person, you can see the entire body movement. Did that ever come up in your discussions with jurors?
Judge Emily Miskel: See in our courtroom, you can’t see the juror’s entire body. They’re in a witness box and so, you can pretty much see from the elbows up same as you can see on Zoom. So I don’t know if there are other jury boxes where the jury has a view of the witness’ entire body but in our witness box, you can’t see the witness’ entire body.
Rocky Dhir: Or just the fidgeting and the kind of feeling uneasy and moving back and forth, is that at all different on Zoom versus in the jury box?
Judge Emily Miskel: No. I think if you talk to the lawyers who’ve done trials on Zoom, for example, I’ve done last I counted as of February or March, I had done over 250 bench trials on Zoom. Your same lawyer skills transfer just as well onto the Zoom world. You can see from someone’s shoulders if they’re fidgeting. And a benefit on Zoom, you can see their twitchy eyebrows and their archy mouths. So you can tell if someone’s relaxed or if they’re uncomfortable or if they’re looking up. It doesn’t come across as well in a podcast but when you have the visual, your same lawyer skills of picking up nonverbal communication work just as well on Zoom.
Rocky Dhir: Jury trial by podcast. You said it, not me. You’re the one that invented it. Judge Miskel ladies and gentlemen. Yeah, okay. So let’s talk about maybe the lawyers. What did the lawyers think of this whole online experience? So our lawyers were very brave and they were extremely well prepared. They did not ask for this assignment. They were voluntold but they put their 100% effort into it and I was really impressed with their performance. Afterwards when we talked to them, the feedback that we got was they were surprised that the panel for jury selection was a lot more of a warm panel so they had to do less work to warm up the panel members and get them to answer questions. They thought that the panel members were more talkative, were more forthcoming with information and so, both lawyers said that they thought that that was a better experience. They chalked it up to two things.
One was the formality of the courtroom experience can kind of suppress how comfortable you feel sharing personal details. And also, you don’t have to stand up in front of a group of strangers. You’re in a comfortable environment on your own device and so, what they observed was, they actually quite liked the experience because they got better, more accurate information from the panel.
Rocky Dhir: Interesting. Okay. So now this leads us into the remote proceeding task force. Talk to us about its genesis. What is it? How was it formed? Obviously, you’re vice chair of it which means now you’ve got even more work to do. So talk to us about this task force and then let’s maybe get into the weeds of what you guys have in the works for us as time goes on.
Judge Emily Miskel: Sure. I think the task force was formed in either late December or early January. So it was formed at a time when we had about nine months of experience under our belt doing every type of proceeding on Zoom. And what we were looking at was, our Texas law is very big and there’s a lot of stuff in it in the Government Code, in the Civil Practice and Remedies Code and the Family Code. I mean, Estates Code. There’s a lot of laws and some of them have barriers built into them to remote proceedings because no one was anticipating remote proceedings when they worded the statutes in the first place. So we were appointed to have different judges and different lawyers from different groups anywhere from legal aid groups to civil groups, trial lawyers, judges to just review all the statutes and to find any unintentional or intentional barriers to doing things remotely.
So for example in the Estates Code, there’s a provision that in certain guardianship proceedings, you can demand that a proceeding be held only in a courtroom. So that is an intentional barrier to any type of remote proceeding. But then there are also unintentional barriers like in the Family Code, it says the judge shall interview a child in chambers. Does that mean it must happen in the actual chambers or does that just mean off the record, right? So our task as a task force was to go through and just basically come up with a list of all the barriers to remote proceedings that might exist in our Texas law.
Rocky Dhir: Now if you find barriers, is it the task force’s job to then recommend legislative changes to remove those barriers or are you just flagging them for a different committee? How does that work?
Judge Emily Miskel: Sure. We took our assignment as just identifying them. It is a political decision to decide — there are a number of ways you could handle it. For example, the way the legislature handled electronic signature is they didn’t go through and amend every statute that referred to a signature. They just passed a blanket law that said anywhere you can use a signature, you can use an electronic signature. And then the next session, there had to be some cleanup of, well not here, well we don’t want electronic signatures for waivers of service, right? So there there’s always something like that. So you could do the same thing with remote proceedings. You could say, anything you can do in a courtroom, you can do remotely and then come back and say, oh but actually we didn’t mean this thing. We meant this thing has to be in person. So that’s one possible solution.
The other solution is to go through and fix all the statutes. There are a number of political solutions to that problem but our job as a task force was not to solve all of them but basically be a resource for what needs to be solved.
Rocky Dhir: Got it. Obviously, we can go in the weeds or we can kind of look at this from 10,000 feet but as you’ve been surveying the landscape of Texas law, how friendly are we to the idea of remote proceedings as the law stands right now?
Judge Emily Miskel: So there are a couple of things that if we did not have any legislative changes would be moderately inconvenient for continuing remote proceedings in the future. For example, the Government Code says that the trial court has to be held in the county seat and so, not a problem for me. I live in our county seat so I can remote court all day and I’m in the county seat. But for judges like Judge Ferguson who has a multiple county district — he told me that he used to spend like four hours a day driving just to get to all his counties and if he can do remote court, he can do twice as much court because he’s not driving for four hours.
And if we don’t change that, even though he can do remote court, he still has to drive from county to county to do remote court which is not efficient. So that’s one of the things I would like to see changed. Other than that though, under our state court system as you remember from civil procedure, state courts or courts of general jurisdiction were not as limited as federal courts. We have inherent powers. And so, just like we’ve always had the discretion to allow a witness to testify telephonically or to do other things that we’ve always had the power to do, I believe that Texas trial courts have a lot of inherent power to do remote proceedings going forward even absent any legislative changes.
Rocky Dhir: Would it be fair to say that you’re a proponent of adding some online components even after COVID passes by and we get back to “normal?” Would you like to see us retain some of the remote court proceedings or do you think we need to just go back to business as it was when it becomes safe to do so?
Judge Emily Miskel: Well, the easiest thing for judges would be to just go back to the way it was right because courthouses are set up for my convenience. I sit at the bench and everybody comes to me and is on my schedule and I don’t have to troubleshoot anyone’s IT.
Rocky Dhir: Right.
Judge Emily Miskel: So when you ask judges do you want to continue remote proceedings and they tell you yes, this is something we need to continue, it’s not because it’s more convenient or better for them, it’s because we have seen so much how much better it serves our Texas litigants and especially the most vulnerable of our Texas litigants which I’m now clearly seeing have been excluded in many ways from participating in person and now are able to participate when we give them the ability to do it remotely.
Rocky Dhir: The counter argument I’ve heard to that is that some of our most vulnerable people in society don’t have access to reliable IT to be able to Zoom in and do something electronically. And so for them, having the ability to actually just physically go someplace makes justice more accessible and so, there’s — I’ve seen two sides of that coin. I’m sure you have too. What would be your response to that?
Judge Emily Miskel: Well, when you say you’ve seen two sides of it, I would push you to say how many people have you seen that have been excluded by technology. I think you’re repeating what we’ve heard and what is a concern which is reasonable but I think what you’ll find is that many more people have access to a smartphone than have access to a working automobile. A working automobile is a lot more expensive than a smartphone and right now, we exclude people who lack transportation. And so, if you can’t afford a car, it’s hard to get to your court date. But you if have a smartphone and no car, you can still participate. And what we’ve discovered is that a lot of our indigent litigants, a lot of our self-represented litigants, they don’t have jobs where they can flexibly get time off work, they can’t afford child care to come to the courthouse and they don’t have a working automobile but they do have smartphones or the ability to borrow a smartphone or the ability to make a telephone call.
And so, where we used to have cases where we saw those litigants never show up and those would all be default judgments, now they are appearing, they are requesting their trials, they are submitting evidence because they have evidence on their phones and now we’re getting text messages – as we require people to submit their evidence the day before the hearing so that we can make sure the court reporter has it. Self-represented litigants usually never submitted any evidence before because they’d come into court, it’d be on their phone, they can’t use it. But now that they can email it to us the day before, they’re using emails, text messages, videos, audio recordings. Our self-represented litigants are very good at using evidence when we remove the barriers to them doing so.
Rocky Dhir: For the remote proceeding task force as you look at the barriers in different areas of our law, the barriers to going remote, what about the barrier or the potential barrier with a particular party saying I have a right to be able to access the court, I want to do everything in person, I don’t want any of this to be remote. Do you see that argument coming up on the horizon? Is that an issue that you fear is going to throw a rail in all this? So for example, if I’m dealing with an indigent self-represented party on the other side and if I say I want everything to be in person, does the court have the inherent power under current Texas law to say, no, we’re going to have aspects of this be remote to equalize a playing field or can one party throw a barrier and throw a wrench into that proceeding going remote?
Judge Emily Miskel: I have not seen anything that entitles a party to demand a proceeding occur in a particular building.
Rocky Dhir: Okay.
Judge Emily Miskel: If people were to object and say that they’re entitled to an in-person proceeding, I would say, well point to something that gives you that entitlement. Other than some of the things we’ve identified in our task force, largely most of the time, the law is silent and because courts have the inherent authority to control the proceedings, there’s nothing that entitles a litigant to demand that the proceeding be held in a particular physical space.
Rocky Dhir: Do you foresee a party possibly saying, well the law is silent on it because it was implied that this would be taking place in a courtroom, that’s why we have court rooms and courthouses and so on and so forth. What would be your reaction? What do you anticipate would be the counter argument to that strain of thought?
Judge Emily Miskel: Sure. Luckily, part of my judicial philosophy is I look at the text of the law and I review what the words in the text mean. And so, if it’s silent then it’s silent but I have not seen anything.
So, this has been my point all along. Right now, the Texas Supreme Court has given us emergency orders that have explicit authority, but I do not see anything in the law that entitles a party to demand that the court hold a proceeding in a particular place other than the county seat which is the government.
Rocky Dhir: Got it. As we move forward past COVID-19 or already as we’re having this conversation, Texas is in the process of opening up. And if that remains, then conceivably we’ll be back to some sort of normal in the foreseeable future. Speaking on behalf of the remote proceeding taskforce, if you had to kind of have a crystal ball and think, “All right, here’s what I think is going to remain remote. Here are the things that could be hybrids and here’s the stuff that’s going to be totally in person again.” Do you have a vision for how that’s going to unfold?
Judge Emily Miskel: Sure. I think what we have observed is that people who have never done remote proceedings are still, even 13 months into this, saying, “It can’t work. We can’t do it.” If you talk to people who have done them, everyone who has done them likes them. So, now, we’ve had, I think, over 1 million remote proceedings in Texas, so a lot of people have experience with it. I think it’s absolutely going to continue because attorneys want it, litigants want it. The times that attorneys don’t want remote proceedings is sometimes they’ll say, “Okay. For this hearing, it’s an evidentiary hearing, it’s complicated. We have lawyers on both sides.” Hey, that’s great. If you have lawyers on both sides and you like the courtroom and you’re comfortable in the courtroom, and you want to come to the courtroom and do that, again, courtroom’s easiest for me. Why would I oppose that?
Rocky Dhir: Sure.
Judge Emily Miskel: But what we’ve discovered is self-represented litigants who are the bulk of our dockets, right, I would say on average, just rule of thumb, a third of my cases have no lawyers at all, a third of my cases have one lawyer involved and about a third of my cases have two lawyers, so.
Rocky Dhir: That’s a big number.
Judge Emily Miskel: Right.
Rocky Dhir: That’s more than I expected. Wow. Okay.
Judge Emily Miskel: The majority of litigants that I see are self-represented, so obviously for a State Bar Podcast, the listeners are going to be lawyers and they’re going to be concerned about lawyer stuff, but I would just ask them to remember that our system serves a lot more non-lawyers and so we have to make sure it works for both. And what we have seen is just overwhelmingly, it works so much better for self-represented litigants when we do it remotely. So, I would be crushed if somehow, we would be prohibited from doing it remotely because I would be looking at all those self-represented litigants who had traditionally been excluded and we didn’t know they were excluded because they just weren’t there. But now that we’ve done this online for 13 months and I’ve seen their faces and I’ve seen them, and I understand now why they weren’t there before to have to go back to an old-fashioned way of doing things that prohibits them from getting justice would just hurt my heart.
So, I hope that we are allowed to continue helping our self-represented litigants, our indigent litigants, you know, our most vulnerable Texans. And again, Legal Aid, provided a letter to our task force saying, “We need remote proceedings to stay. We’re concerned about making sure everyone has notice, making sure everyone can participate,” but even Legal Aid sees that people are overwhelmingly helped by remote proceedings. But your initial question was what will go forward. So, I would just say a lot of lawyers also like it because they can do multiple counties in the same morning.
Rocky Dhir: Sure, absolutely.
Judge Emily Miskel: So, we have a ton of lawyers who are like, “I’m doing Rockwell at nine and Collin County at 10,” and you couldn’t do that in-person, so that’s a help to lawyer too. I think witnesses, expert witnesses specifically, so that could be anyone from an expert that you have to pay to fly in for the hearing. Obviously, it’s much cheaper for the litigants if their expert can testify telephonically, same with experts that are public servants. So, our teachers, our police officers, our city records custodians, all those people no longer have to — you know, we commonly have objections in the trial court like this teacher was subpoenaed to testify, but the school is doing standardized testing and she doesn’t have a sub and the sub can’t do the stan, you know.
All those problems go away if we can just let the teacher testify remotely, then she doesn’t have to leave her classroom, find a sub, sit in the courthouse hallway all day which is a waste of her talents. Same with doctors, the doctor doesn’t have to cancel her patients all day so that they miss their care come and sit in a hallway. That’s not efficient. It’s not a good use of anyone’s talents and resources. And I think witnesses, expert witnesses and other professionals that get subpoenaed to testify is another way we will see a lot of use of remote proceedings going forward.
Rocky Dhir: What about jury trials? Do you think jury trials are eventually going to have some kind of online component where the jurors are sitting in their homes or do you think that’s going to come completely back to the courthouse?
Judge Emily Miskel: This is a curious thing about the discussion which is everyone’s like, “But what about jury trials?”
I think something like 0.2% of cases are resolved by a jury trial.
Rocky Dhir: For sure.
Judge Emily Miskel: So, if I see something that’s very helpful for the other 99.8% of cases, I’m going to figure out a way that we can still use that tool. But yes, we want to talk about the 0.2% because it’s an important 0.2%. Nobody is trying to force anyone to have remote jury trials long-term if people want to come into the courtroom. What I do think will happen is I think jury selection, if I had a crystal ball and I could look 10 years into the future, I think we will see much more expanded use of remote jury selection because the demand is going to come from the people that are called to serve on juries. And if they realize that we have the capacity to let them participate remotely, but we are choosing not to and we are instead forcing them to take a day off work, find childcare, drive to the courthouse, wait around in the courthouse hallway, they will get in touch with their representatives and they will demand that the process will be more convenient for them, right, and I think there are benefits.
So, what we have observed from other states and Texas is that when you summon a panel remotely, you get more diversity. You get more representation that matches the community. So, on average, for example, King County Washington published some data on this. Their median juror age for in-person juries was 47. Their median juror age for remote juries is 41, which is closer to the median of the county. We also see more racial diversity, more gender diversity, when we do it remotely. So, for example, in counties where they had a significant minority population, but in-person juries were typically largely Caucasian, now when those counties are doing remote juries, they’re seeing minority participation and minorities serving on juries in an increased number which more closely matches the community that they’re in, which we all believe is a good thing.
Rocky Dhir: I’m going to confess. One of my own personal biases and that is that I love the idea of innovation in the law. I think lawyers need to get behind that. Do you think with things going remote and if more and more states adopt some form of remote proceeding, do you think it’s going to make it easier for multi-state law practice where maybe lawyers are able to practice across different jurisdictions? Because like you said, you can go from Rockwell to Collin County in an hour, you know, online. Do you think it’s going to now expand across different states? Do you think that’s maybe possible 20 or 30 years in the future?
Judge Emily Miskel: So, that’s not something I’ve ever thought about and I have no idea. One of my hopes was, as a Trial Judge, you know, I mentioned a number of cases that we have to get through. But it’s really hard to get through cases in like July because half the people go on vacation one week and half the people go on vacation the next week, and we can’t get two weeks with anyone together. So, my hope would be, if the practice of law is more geographically flexible that has a lot of benefits for lawyers and for litigants, for example some Texas counties don’t have any lawyers living in them.
And so, to get a lawyer in those cases can be prohibitively expensive because you have to pay a lawyer from one or two counties over to drive a significant distance to appear personally in court. Whereas, so I’m thinking of Judge Ferguson’s West Texas area, whereas now if a lawyer can — if the lawyer knows that I will be allowed to participate remotely, then a lawyer from Houston can take a pro bono case or another case in an underserved county and everyone benefits because the people in that county get access to lawyers. Lawyers are able to do pro bono knowing that the time commitment is going to be more reasonable than having to drive all over all the time and wait around in hallways. So, I really think that with geographic flexibility comes a lot of benefits for paying clients and pro bono clients.
Rocky Dhir: Interesting. Well, we’re running a little short on time. We have time for one more question and so this might be the most important question of this entire session, and that is that you seem to have everything kind of together. So, what’s the number one adulting tip you can give to people like me who were just a mess all the time? I mean you’re getting so much done in a single day. I’m thinking, “All right, when did you take the adulting class that I seem to have missed?”
Judge Emily Miskel: Just buy more monitors, like two monitors. Just get like five monitors and then you’ll be great.
Rocky Dhir: That’s all I need to do to be a functioning adult?
Judge Emily Miskel: That’s all you need.
Rocky Dhir: This is great.
Judge Emily Miskel: Take it to the bank. Five monitors, you’ll be an adult.
Rocky Dhir: We need to put that in the writeup to this show. It’s like, “Get the Best Adulting Tip You’ll Ever Hear.” This is it, right here. It’s not Top 10 list, this is number one. We cut straight to the chase.
Judge Emily Miskel: I’ll only give one tip and that’s it.
Rocky Dhir: I love it. I’m investing in monitor stock today. So, thank you. Well, Judge Miskel, this was a pleasure. I think we could talk about legal innovation and remote proceedings and online jury trials all day. It’s a fascinating topic, but I want to thank you for taking time out to join us. It was very gracious of you.
Judge Emily Miskel: Thank you for having me and I could talk all day about this stuff. I hope my passion came through, but I’m always happy to share what we’ve learned about remote trials over the past 13 months.
Rocky Dhir: It sounds like the work that you all have been doing over this past year. It’s probably going to be with us now for the foreseeable future, hopefully. So, hats off to you and everybody else that’s been working on this project, the lawyers and the judges alike. So, you guys are unsung heroes. Speaking of unsung heroes, I want to thank you for tuning in and I would encourage you to stay safe and be well. COVID-19 is still out there, so it may not feel like it, but it is. So, please be careful. Please continue to exercise precautions and just please look out for yourselves and for each other.
If you like what you heard today, please rate and review us in Apple Podcasts, Google Podcasts or your favorite podcast app. Until next time. Remember, life’s a journey folks. I’m Rocky Dhir, signing off for now.
Outro: If you would like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast, subscribe via Apple Podcast and RSS. Find both the State Bar of Texas and LegalTalk Network on Twitter, Facebook and LinkedIn, or download the free app from LegalTalk Network in Google Play and iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by the State Bar of Texas, LegalTalk Network or their respective officers, directors, employees, agents, representatives, shareholders or subsidiaries. None of the contents should be considered legal advice. As always, consult a lawyer.
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|Published:||May 6, 2021|
|Podcast:||State Bar of Texas Podcast|
|Category:||Access to Justice , COVID-19|
State Bar of Texas Podcast
The State Bar of Texas Podcast invites thought leaders and innovators to share their insight and knowledge on what matters to legal professionals.