Our Court System in a Post-COVID World (State Bar of Texas Annual Meeting 2022)

Episode Notes

Transcript

[Music]

Rocky Dhir:  This episode is brought to you by the generous support of LawPay, a Texas member benefit provider.  Getting paid just got a lot easier.  You all check them out @lawpay.com.  That’s lawpay.com for more details.

And now on to the show.  So welcome, everybody, to the State Bar of Texas podcast.  We are recording in person here on the ground at the 2022 annual meeting in Houston, Texas.  Such exciting stuff.  This is your host, Rocky Dhir.  Joining me now, we have a Stellar panel.  We’ve got Tom Leatherbury, her Honor Judge Emily Miskel, and the Chief Justice of the 14th Court of Appeals, the very Honorable Tracy Christopher.  So thank you guys for being here today.

Emily Miskel:  Yeah, glad to be here.  Thank you.

Tom Leatherbury:  Great.

Rocky Dhir:  Now, Tom, you and Judge Miskel are both veterans to this podcast.  You’ve been on here before.  And Judge Christopher, this is your first time.

Tracy Christopher:  I know.  I’m a little nervous.

Rocky Dhir:  Yeah.  We’re going to have to find some kind of hazing ritual since you’re a first timer.  I’ll let the other two panelists decide what they’re going to do.

Tracy Christopher:  Well, there actually is a pool on the roof here, so that one won’t work.

Rocky Dhir:  You can do that.  Yes.  We cannot recreate the hangover judicial edition.  So before we start really diving into our topic today, let’s learn a little bit more about each of you.  So, Judge Tracy, we’ll start with you, Judge Christopher.

Tracy Christopher:  So I’ve been a judge for 28 years.

Rocky Dhir:  Wow.

Tracy Christopher:  I was a trial judge for 15 years, and now I’ve been on the appellate court 13 years.  And before that, I practiced civil litigation.

Rocky Dhir:  Okay, okay.  But you still remember, you remember what it was like in the (00:01:37)?

Tracy Christopher:  I do.  And I’m married to a lawyer, so if I do something a little crazy, he’s like, “Oh, no, you shouldn’t have done that.  What are you doing?”  But the biggest thing really is to always remind myself with respect to the lawyers when they say, “Oh, Judge, can I give you a supplemental brief?”  Instead of saying yes in two days, I said, “Yes in a week or so.”  How does that sound?

Rocky Dhir:  Oh, bless you.

Tracy Christopher:  Yes.

Rocky Dhir:  Bless you.  I’m always on the receiving end of that.  It’s like, “I need this in two days.”  So thank you, judge, for that.  And, Judge Miskel, tell us — I know where you are, but I don’t know the listeners do, so why don’t you go ahead and tell us?

Emily Miskel:  Sure.  I’m a district judge in Collin County, which is just north of Dallas.  I’ve been on that bench since 2015, almost seven years.

Rocky Dhir:  Beautiful courthouse.

Emily Miskel:  It is.  And one of the reasons I’m on this panel is because of my work during the pandemic to keep trial courts open, virtually, in person, however we could do it.

Rocky Dhir:  Absolutely, yes.  And that’s why we had you on the podcast before.  So we’ll get into that in just a few minutes.  And Tom, this guy needs no introduction, but why don’t you go and introduce yourself anyway?

Tom Leatherbury:  Sure, Rocky.  I’m a senior partner at Vinson & Elkins in the appellate section and have represented journalists for over 40 years.  And two years ago, I became the founding director of the SMU First Amendment Clinic at SMU Law School.

Rocky Dhir:  Well, now your panel today was about, and this is on the second day of our conference here.  Your panel today was about courtroom transparency, how COVID-19 kind of changed it, and what transparency in the courtroom is going to look like in a post COVID-19 world.  Let’s maybe start with because we’re lawyers, we like definitions.  So how are we defining transparency?  And why is it termed as transparency as opposed to just simply courtroom access?  So maybe, Judge Miskel, we can start with you.  What do you mean by courtroom transparency in this conference?

Emily Miskel:  One of the very interesting things that happened during the pandemic, as judges, we’re sort of cautious — we’re very conscious that we can’t speak about our work while we’re doing our work, right?  We don’t talk about cases that are before us.  We’re very cloistered in some ways.  But during the Pandemic, it was also very important to us to keep proceedings open to the public in Texas.  That’s very important to us.  And so we were kind of dragged into broadcasting our remote proceedings on YouTube, which I don’t think any judge ran for election because they wanted to be a YouTuber.  I’ll just put that right up front.  But actually, it was such a great part of the pandemic.  I had administrative employees of the county would tune in and watch, law students would tune in and watch, retired friends and neighbors would be watching.  YouTube shows you how many people are watching, it doesn’t tell you who they are.  But on average, I’d have between 25 and 50 people watching the online court proceedings.  And it was just so neat for just the civics education aspect of it that it was really unanticipated but I really enjoyed it.

Rocky Dhir:  Now, Judge Christopher are you finding that same dynamic in the appellate courts as well?

Tracy Christopher:  Yes, surprisingly.

Rocky Dhir:  Wow.  Especially as I’m an intermediate appellate court.  The Texas Supreme Court has always broadcasted their arguments, and so it was new for us to broadcast our arguments.  And I was surprised at how many sort of random people would say, “Oh, I watched that argument.”  You’re like, “Wow, really?  Okay.”

(00:05:05)

Rocky Dhir:  Do you ever ask them why like, what in the world prompted you?

Tracy Christopher:  A lot of them, truthfully, are young lawyers that want to have some experience and it was really a good thing for that.  People would watch my panel just to see how I ask questions if they had another case in front of me.

Rocky Dhir:  Let’s espionage.

Tracy Christopher:  Let’s espionage, right?  Research.  Right, right.

Rocky Dhir:  See, Judge Miskel always knows how to take my jokes and make them actually appropriate for air, which is why I love having her on the podcast.

Tracy Christopher:  People said they loved that aspect of it.  And so we have not stopped, even though we have in person oral arguments now.  They’re still available on YouTube.  Now, not all the courts of appeals are that way, though.

Rocky Dhir:  It’s just the 14th at this point.

Tracy Christopher:  About half.

Rocky Dhir:  Okay.

Tracy Christopher:  I did a little survey.  About half of them are still broadcasting everything on YouTube.

Rocky Dhir:  And then, Judge Miskel, are you going to continue with the YouTube thing as well, or are you now transitioning to fully in person?

Emily Miskel:  So I have transitioned back to doing a lot of things in person, which realistically means hybrid, because we’re still having all kinds of people appear remotely for proceedings, which is a great thing.  But there are some dockets that I do on Zoom, like my CPS docket is just so much better access to justice.  When we do it on Zoom, so many more participants are able to appear.  And so I’ll continue to do those cases on Zoom.  And yes, so I do broadcast those to YouTube and then of course, delete it immediately upon the conclusion.  So you can only watch live.

Rocky Dhir:  Got it.

Tracy Christopher:  Oh, really?  I didn’t realize that you would be deleting them.  Ours stay up.

Rocky Dhir:  Well, I guess that makes sense because it’s for the appellate record in case it goes up further, right?

Emily Miskel:  No, that’s very important.

Tracy Christopher:  That’s my point.

Emily Miskel:  Not the appellate record.

Rocky Dhir:  Okay.  But it’s just up for public consumption.

Tracy Christopher:  It’s just up for public consumption.

Rocky Dhir:  Interesting.

Tom Leatherbury:  And other courts are kind of hit or miss.  They will leave some up and then they’ll take some down.

Rocky Dhir:  Interesting.  Now, Tom, from a practitioner standpoint, how’s the transition to Zoom and then the transition back to in person?  How has that been for you and for your clients?

Tom Leatherbury:  Well, I think there’s some real pros for the clients from remote appearances, a word I learned this morning from Justice Christopher and Judge Miskel, because it’s hard to classify things as remote proceedings when they’re only half remote, maybe they’re hybrid.  I have to say, I like in person.  I did several Zoom arguments, appellate arguments, and it was pretty unsatisfying.  We’re not the same level of satisfaction.  But from the client standpoint, particularly for trial lawyers and particularly for rural trial lawyers in Texas, the cost savings and the efficiencies are just astronomical because they used to have to drive from county to county, and now they can appear in multiple courts in multiple counties on the same day.  And the clients don’t –

Rocky Dhir:  They’re not paying for all that, right?

Tom Leatherbury:  Their clients are not paying for all that and they may not have to take off as much work if they have to be a witness.  They may not have to worry about childcare if they can appear remotely.  So there are huge efficiency and cost considerations and pros with remote proceedings.  I think the lawyers will want to be in person whenever possible, but I think it’s a balance.  And some are going to be in person, some are going to be remote, and we’re just going to have to sort through that and the courts will do the sorting for us.

Rocky Dhir:  Could I ask maybe what might be kind of an indelicate question, right?  Judge Miskel is laughing because she’s like, “Of course, you’re going to ask the indelicate question,” but because, Tom, you bring up an interesting point, right?  So let’s say you have one lawyer or one set of witnesses that show up in person, and then on the other side, they’re showing up via Zoom.  They’re remote.  As judges, how do you try to stay objective, right, and how you try to kind of check your own bias?  Because to some degree, my assumption is that when you see somebody in person, it has a different impact than when they’re on a screen on Zoom or at least that’s what I’ve been told and what I’ve heard.  So I guess maybe the question needs to be really a two part question.  Is there a difference when you have lawyers or witnesses appearing via zoom versus in person?  And if there is, how do you manage to try to stay objective and keep your judicial head on, even though as people, we might have a different reaction depending on the format they show up in.  So, justice, we can start with you.

(00:1:02)

Emily Miskel:  Well, at the appellate court, we don’t do hybrid proceedings.  We just don’t have the technology for it.

Rocky Dhir:  So it’s all in person from the attorney.

Emily Miskel:  We also allow someone to ask for a Zoom hearing.

Rocky Dhir:  Okay.

Emily Miskel:  And they file a motion for it.

Rocky Dhir:  So if it’s Zoom, then everybody’s on Zoom.

Emily Miskel:  Then everyone’s on Zoom.

Rocky Dhir:  Okay.  You don’t have that dichotomy per se.

Emily Miskel:  We do not.

Rocky Dhir:  Okay.

Emily Miskel:  But I actually went and tried a case recently where we had in person plaintiff and Zoom appearing defendant.

Rocky Dhir:  Okay.

Emily Miskel:  And in a jury trial.  And the jury seemed to take that in stride without any trouble at all.

Rocky Dhir:  Okay.  It didn’t affect their perception one way or the other as far as you could tell.

Emily Miskel:  It didn’t appear to.

Rocky Dhir:  Okay.  Interesting.  Now, from your perspective, when you have in person versus remote, is there a difference for you, or are you able to just say, “All right, there’s two different formats, and you just kind of roll with it.”  Or, do you have a preference?  Do you feel like one gets better results than the other is it just (00:11:07)?

Emily Miskel:  I don’t think the results are different when it’s a Zoom argument because of the appellate court, we’re on kind of a tight timeframe.

Rocky Dhir:  Right.

Emily Miskel:  It’s a little harder to break in and ask questions.

Rocky Dhir:  Sure.

Emily Miskel:  And I like to ask a lot of questions.  So it’s just a little bit harder.

Rocky Dhir:  This must be making you very uncomfortable, because I’m asking the questions.

Emily Miskel:  Well, so what would basically happen?  And I think you saw that at the U.S. Supreme Court.  At the end of the argument, the presiding judge, chief justice, would say, “Okay, does anybody have questions?”  And so they would go one by one and ask questions.  And I started to do that at the end of ours too, when we were doing it by Zoom, just because it’s a little harder to break in.

Rocky Dhir:  You’d have to use the chat function, which is very clumsy.  It’s like, I have a question.  Justice Christopher has a question.  Right, I can see that.

Tracy Christopher:  No, you try to waive at somebody.  Can you please stop for a minute, can I ask you a question, but because of the time log, they don’t always hear you.

Tom Leatherbury:  Right.  It’s harder for the advocate, too, because you’ve got three little boxes to look at and a timer, and it’s just harder to read when you’re in person.  You can tell a judge needs to ask a question or wants to ask a question because they lean forward or they start to, it’s harder.

Rocky Dhir:  Absolutely.  Judge MisKel, I guess, to put it very bluntly, you’re on the front lines of all this because being a trial judge, do you find this dichotomy to be something that you have to be conscious of in person now that it’s hybrid?  When you got somebody in person and you got the other side on zoom, does that change it at all?

Emily Miskel:  At first, we were entirely Zoom, and then I have, in some types of hearings, tried to come back entirely in person, but every day, everyone has a good reason where somebody needs to be on Zoom.  At first, I really disliked the hybrid proceedings.  I thought they were exhausting, they were frustrating, but now that I’ve done it so much, we’ve been doing hybrid proceedings for almost a year now.  I have the technology set up.  We know how to use it.  I have assistance from my staff, so she checks everyone in and make sure their audio and video work.  I think that would probably be the biggest source of frustration, is if you’re having trouble hearing somebody.

Tom Leatherbury:  You’re frozen, you’re on mute.

Emily Miskel:  Honestly, at this point, everything is set up.  It’s so routine that it’s not even different for me.  So I don’t know that it affects the outcome or that it affects anything.  As long as I can hear and see people, I don’t think it has a measurable difference on elements that I’m listening for or the facts that are meeting burdens.

Rocky Dhir:  I know early on, Judge Miskel, you’d made some headlines in the legal world because you had like a jury type proceeding that you had done on Zoom in the earlier part of the pandemic.  Now, as we move forward, the question for the entire panel really is, do you foresee — are there parts of the legal process, the litigation process that you think will either be entirely Zoom, continue hybrid, or that will have to go entirely back in person as we start moving forward?  From a transparency and from an access perspective, maybe the question should be better phrased this way.  I’m going to rephrase my own question.  I’m going to object to myself.  All right, I’m going to rephrase the question.  What role will remote access play in a post pandemic world as we start distancing ourselves from COVID-19?  So, Tom, we can maybe start with you on that one.

Tom Leatherbury:  Well, I think for efficiency and economy reasons, there are parts that I would like to see continue on Zoom.  Summary judgment hearings, I think, where you don’t have witnesses, where you have a record, and even to some extent, the appellate arguments just savings in cost tremendously.

(00:15:11)

You don’t have to fly two lawyers to Atlanta and stay overnight in a hotel.

Rocky Dhir:  It’s only there’s a story.  Something happened in Atlanta.  I want to know what happened.

Tom Leatherbury:  Well, no, that was a hybrid argument, and the 11th Circuit technology did not work.  Well, another lawyer gave the argument, but it was very difficult to listen to because he was remote, having tested positive for COVID and his opponent was in the courtroom, and it was not easy to hear and understand.  I think totally remote with the appellate proceedings is fine.  I think we all work through those problems.  It’s a record.  There are no witnesses.  I think heavily contested evidentiary hearings where one lawyer or the other is going to care about credibility.  And I think jury proceedings, jury trials are probably going to be in person.  I mean, Chief Justice Christopher hears a lot of opinions about who gets to decide and who thinks what about what should be remote and what should be hybrid and what should be in person.  So I know she and Judge Miskel have great perspectives on that.

Rocky Dhir:  Well, I’m going to save Judge Miskel for the end of that question, because you’ve actually dealt with online juries and the whole credibility question, I think it’s going to be interesting.  So Chief Justice Christopher, from the appellate standpoint, do you concur with Tom where he says, well, for appellate, it would be great, where you don’t have witnesses, it would be great to keep on Zoom?  Or, do you have a different take on this?

Tracy Christopher:  Well, having been a trial judge for 15 years and having actually gone back and tried a case recently, I think on the civil side, and we’re really only talking about civil cases at this point because we have the right to confront witnesses, which are court of Criminal Appeals has said has to be in person.

Rocky Dhir:  It has to be in person, sure.

Tracy Christopher:  So on a civil case, you have a lot of depositions, right?

Rocky Dhir:  Right.

Tracy Christopher:  And the depositions are read to the jury, or if they’re videotaped, they’re played to the jury.  And I think it’s absolutely better to have that same doctor appear by Zoom versus having the deposition read, because then facts that have happened during the trial, you can bring it up to the doctor rather than having this sort of static deposition that happened a while ago.  I know we’re discussing this, and I don’t know where we’ll end up getting with it, but let’s say you deposed a witness who doesn’t live in Texas, right?  And you got his deposition, which you’re allowed to do, and now you’re going to trial, and you want the witness to appear.  Could we, should we make the witness appear by Zoom?

Rocky Dhir:  Well, that change the subpoena power, of course, because now you can–

Tracy Christopher:  That’s the question, right?  Yeah, we’re exploring that idea, and we’ll see what happens.  Certainly, within the State of Texas, I believe that we could do that.

Rocky Dhir:  Yeah.  The question is, what do you do when you’ve got somebody in Oklahoma, in Louisiana?  And then –

Tracy Christopher:  Yeah, what you would have to do then and you have to do this now anyway, if you’re going to go take their deposition.  You have to get that particular State’s court involved.  And so it would have to be some sort of reciprocity between the states that, let’s say the Oklahoma judge would say, ”Okay, show up at this day and time in your on Zoom to be played in Texas.

Rocky Dhir:  On Zoom.  Right.

Tracy Christopher:  We’ll see.  I actually think that that would be a lot better, but there are a lot of rather than that static deposition.

Rocky Dhir:  Sure.

Tracy Christopher:  But there are a lot of people that don’t want that to happen, so we’ll see.

Rocky Dhir:  Interesting.  Okay, now, Judge Miskel, I could tell you got thoughts on this.  So, Judge Miskel, what do you think is going to be the role of Zoom as we move forward?

Emily Miskel:  Sure.  I don’t think anyone envisions jurors participating by Zoom and trials going forward.  I don’t think judges want that.  I don’t think lawyers want that.

Rocky Dhir:  Because You did that.  I mean, you experimented with it?

Emily Miskel:  Right.  We didn’t know how long the pandemic was going to go on and we needed some data about whether it could be done, and we found out it could be done, but I don’t think anyone’s urgently wanting to do that.  But for example, I’ve done over 300 bench trials on Zoom.  They go just fine.  Right now, we’re I think the main point where I think we will see a lot of Zoom going forward is people who have traditionally been excluded by our traditional in person way of doing things.

Rocky Dhir:  Okay, examples, if you don’t mind.

Emily Miskel:  Sure.  If you talk to experienced lawyers, where did they get their experience?

(00:20:01)

Decades in the courtroom.  So where are they comfortable?  In the courtroom, right?  But most people off the street are not comfortable walking into a courtroom standing up, talking, expressing themselves.  So for people who represent themselves and don’t have lawyers, they often prefer Zoom.  People with disabilities where it’s difficult for them to travel to the courthouse or difficult for them to hear when they’re at the courthouse, or for whatever other reasons, it is more comfortable for them to be at home with the equipment that they need are better served on Zoom.  Language interpretation.  So there are a lot of people who speak languages in Collin County that we don’t have interpreters for in Collin County.

Rocky Dhir:  We can get them from elsewhere if we need to.

Emily Miskel:  Zoom might allow me to use Houston’s interpreters without having to pay them to drive and stay overnight in Collin County.  We have a court reporter shortage right now, a desperate court reporter shortage.  If I’m getting a substitute court reporter, it’s going to be on Zoom.  So there are a variety of ways in which our in person system wasn’t working for people, and so those people are doing great on Zoom.  For the people that the in-person system works for, those people can and want to come back in person, and that’s fine.  We have the capacity to do both and to serve all Texans.

Rocky Dhir:  And Judge Miskel, maybe you can continue with this question, which I think will probably be our final question because we’re starting to reach the end of our time.  But do you envision a change to our rules of procedure to kind of encompass how Zoom is to be used, how remote proceedings are to proceed?  And the reason I ask is there were those stories of not just lawyers not showing up sometimes in the best attire on Zoom, but there was also situations where witnesses would be in their car or they’d be out at a dog park and you can’t really hear them.  It’s not really appropriate to a courtroom setting.  And so then judges had to admonish and say, listen, you need to be at a home, you need to be indoors, or something to that effect.  Do you think there’s going to be new rules written about how we make remote proceedings work?  So if we’re going to do remote or hybrid, there’s got to be a certain set of rules on what litigants and lawyers need to abide by in order to make that work.  Do you foresee something like that?

Emily Miskel:  Okay, so you asked two questions.  One is about informality.  So we do admonish in person people on what to wear when they come to court.  So the postcard you get for your jury service says, don’t wear your work uniform, wear pants.  So I don’t see any real difference–

Rocky Dhir:  Real pants.

Emily Miskel:  Between the training that we give people to appear in person versus the training that we give people to appear remotely.  So I think that’s sort of a red herring but you were talking about —

Rocky Dhir:  Well, the second question is really about where they are.

Emily Miskel:  Rule changes, rules changes.

Rocky Dhir:  Right.  And then we’re going to get rule changes to try to make it more transparent as to where we want people to be.

Emily Miskel:  Right now, we have no rule on how a court conducts a hearing.  Chief Justice Christopher pointed that out.  If you look in our TRCP, there’s no rule about how a judge conducts a hearing.  So I don’t know that we need a rule for how a judge conducts the hearing.  Now, if we’ve gotten by for 80 years without one, but I do think we will see discussion of rule changes.  Courts right now have the absolute authority to allow a participant to appear by telephone, and we have not needed a separate rule for that.  Right now, over the objection of a party, a court can allow a witness to appear and testify telephonically.  So I don’t know why we would think Zoom is worse than that.  I would think adding video is in all cases better than just hearing from a witness testifying telephonically.  So I’m not sure that we need new rules, but it might be a good idea to study that and look at it and revisit.  Would it help the court?  Would it help the public?  Would it help transparency and efficiency to provide some of this assistance in the form of a rule?

Rocky Dhir:  Your Honor, Chief Justice Christopher.

Tracy Christopher:  I know that if you really want to look at a set of rules, that the Austin Courts have a very detailed set of rules because they have done quite a few remote jury trials in Austin.  And they have a detailed set of rules about where the jurors have to be, where the parties have to be, and who can be in the room with you, all of those things.  I’m not sure we’re going to go with remote jury trials.  We’re just getting a lot of pushbacks from it, from that idea.  I’ve always sort of left it up to the lawyers to tell their witness to dress up nicely, right.

Rocky Dhir:  In the indoors and not — where everybody can hear you.

Tracy Christopher:  Right.  Maybe to that level of detail, but I don’t think so.  I think instead we might do judicial best practices.

Rocky Dhir:  Okay, (00:24:52) of the guideline.

Tracy Christopher:  Where we have sort of education at our judicial conferences that give people, you might want to have these guidelines for your courtroom rather than having it a rule.

(00:25:04)

Rocky Dhir:  Rather than having a codified as a rule.  Tom, do you agree, or do you think we’re going to need some kind of more formal set of rules for something like this?

Tom Leatherbury:  No, I completely agree with Chief Christopher and Judge Miskel.  I don’t think we’re going to get a detailed set of rules.  I think best practices in education, both for the lawyers and the judges so the lawyers can educate their clients is going to be the way to go.

Rocky Dhir:  Well, and I wish we could keep talking about this, because I think we’re just at the cusp of a brave new world in terms of how we do all this, and I hope we can continue this discussion on another day, but unfortunately, we have reached the end of our program.  But I want to thank my guests today for sharing their insights.  This was a lot of fun.  Thank you all.

Tracy Christopher:  Thank you.

Emily Miskel:  Thanks for having us.

Tom Leatherbury:  Thanks a lot.

Rocky Dhir:  Now, for our listeners, if they have questions, they want to follow up, they want to kind of reach out and get more insights from you, what’s the best way for them to get a hold of you?  So, Tom, let’s start with you.

Tom Leatherbury:  Yeah, my email is [email protected].

Rocky Dhir:  Easy enough.  All right, Judge Miskel?

Emily Miskel:  I’m on Twitter at Emily Miskel.

Rocky Dhir:  Dang.  Okay.  She’s throwing down the handles.

Tom Leatherbury:  Okay.  I am, too, at tsleather.

Rocky Dhir:  Do we need to get you your own hashtag?  Because I can see you getting your own hashtag.

Emily Miskel:  Yeah, let’s work shop it.

Rocky Dhir:  Yes, yes.  It’s going to be JM, hashtag JM.  All right.  And Chief Justice Christopher?

Tracy Christopher:  I set up a Twitter account many years ago, but don’t use it.  So it’s [email protected].

Rocky Dhir:  Wonderful.  Well, thank you again.  That is all the time we have for this episode of the State Bar Texas Podcast brought to you by Lawpay.  Thanks, LawPay.  Also, thank you to our listeners for tuning in.  If you like what you heard, please rate and review us in Apple Podcasts, Google Podcasts, Spotify, Amazon Music, or your favorite podcasting app.  We just want you to listen in.  I’m Rocky Dhir, until next time.  Thanks for tuning in.

[Music]

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