Post-Pandemic Court Proceedings (State Bar of Texas Annual Meeting 2023)

Episode Notes

Transcript

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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: Hello and welcome to another episode of the State Bar of Texas Podcast. We are recording live from our State Bar Annual Meeting in Austin, Texas. This is your host Rocky Dhir. Joining me now, we got four amazing panelists. We’ve got Michelle Casady, Megan LaVoie, Jennifer Doan, and you’ve heard him before a Judge Roy Ferguson. Joining us here today, we’re going to be really talking about post pandemic court proceedings. A topic they just discussed earlier today here at the Annual Meeting but first, let’s get to know our guests a little bit. So tell us a little bit about what you do, where you work and Ferguson we are going to wait till the end with you because I think we all know you already.

Judge Roy Ferguson: All right.

Rocky Dhir: So, all right, so Michelle tell us where you work and what you do?

Michelle Casady: Yeah, I’m a reporter with the Texas Law Book. I’m based in Houston and my beat is mainly civil litigation in Texas.

Rocky Dhir: I think it’s cool that you’re the only panelists we’ve ever had said “my beat is”, like that’s awesome. And speaking of speaking of beats, here somebody doesn’t miss a beat, Megan, Megan LaVoie, tell us what you do and where you work.

Megan LaVoie: Yes, I’m Megan LaVoie, I am the Administrative Director for the Texas Office of Court Administration as well as the executive director for the Texas Judicial Council and I’ve been in this role for about a year and a half and prior to that I was director of public affairs and special counsel for our agency and we work with all the courts across Texas.

Rocky Dhir: So your agency was the one that helped Texas be the first one to go completely to Zoom when COVID hit?

Megan LaVoie: We were.

Rocky Dhir: Yeah, you guys were awesome.

Megan LaVoie: It was a huge undertaking and I — in our panel earlier, I was saying I wasn’t a believer at first and I’m glad that I was proven wrong.

Rocky Dhir: Oh, yeah no, that worked out very, very well. So thank you all for what you did. Jennifer Doan?

Jennifer Doan: Yes sir. My beat is —

Rocky Dhir: Oh you had to go there, you had to go there.

Jennifer Doan: I’m going to grab on that one, I like that.

Rocky Dhir: I know you did.

Jennifer Doan: So I’m a Trial Lawyer and I practice throughout all of Texas and state courts and federal courts throughout Texas and Arkansas. We’re home based in Texarkana, I went to Twin City, went to Texas and Arkansas, so Arkansas is not that big of a state (00:02:27) I was listening to that, so geographically smaller. So we produced throughout all over the state both state and federal courts.

Rocky Dhir: Very well, Judge Roy Ferguson. You’re a veteran here so we feel like we know you but go ahead and remind us.

Judge Roy Ferguson: My purpose for being on this panel is I’m the judge of the 394th Judicial District Court out in Far West, Texas. And our court is an early adopter of technology of every kind. If we can figure out how to do it, we do, if we can’t, we get a pilot program and they teach us how to do it. So that’s why I think I’m here with the rockstar panel just sort of sweeping up behind.

Rocky Dhir: Well, so you know, judge will start with you because you know, you’ve been in the news for a couple things that have happened in your court when we went online during the pandemic, and you were, if I recall correctly, you were in charge of helping to train other judges in Texas on how to use all this technology that they were suddenly having foisted upon them and becoming more adept at things like using Zoom and using remote proceedings. As things have moved into a post pandemic world, are there any challenges, has the practice of law evolved from your perspective as a judge, kind of walk us through your experience.

Judge Roy Ferguson: So Texas was so early. Such an early adopting state, and Megan’s predecessor was David Slayton was really a huge part of that.

Rocky Dhir: Absolutely.

Judge Roy Ferguson: He launched us within three days of knowing the lockdown was coming into this virtual world. So Texas has three million virtual hearings passed. Everyone knows what they’re doing now. So as in Texas, what we’re trying to do is take what we’ve learned that worked and make it an option to make our system better but in the rest of the country, there are states who are just now toying with the idea of using remote proceedings. So those of us who were involved in Texas’ quick development of remote proceedings, we are now going to other states and teaching them how to do what it is Texas learned how to do in 2020 and 2021.

Rocky Dhir: So Megan this might be a good time to kind of have you chime in, you know, from your vantage point, you know, of course. Yes, if we had David Slayton on the podcast to talk about our efforts here in Texas to go fully remote. As we move past that, what do you think are going to be the new challenges when it comes to technology and how we harness those in this post pandemic world?

Megan LaVoie: You know, so something that we were talking about on the panel is hybrid proceedings, where some of the participants are in-person, some of the participants are on Zoom and our courtrooms are not set up for that right now.

(00:05:06)

Rocky Dhir: Sure, it’s all or nothing basically, right?

Megan LaVoie: Right. I mean there might be a TV screen but I mean, we’re talking about audio capabilities, a camera that can move around and see multiple vantage points. So I think that is what we’re looking at in the future is transforming courtrooms for that type of technology. Also, you know, changing hearts and minds about court proceedings or remote proceedings.

Rocky Dhir: Sure.

Megan LaVoie: Showing the benefits where they work and where they don’t work is something that we’ll be focusing on in the future.

Rocky Dhir: And Jennifer you’re a trial lawyer. So in a sense, you’re the one having to react to all of this, right, you’re having to adjust. Talk to us about what it was like to adopt to an all remote setting during the pandemic and how your practice has evolved since then, now that we’re exiting or have exited depending on your viewpoint, now that we’re kind of past the pandemic.

Jennifer Doan: Sure.

Rocky Dhir: How is that changed?

Jennifer Doan: So, I mean, I have to tell you and I know I’ve told Judge Ferguson this several times. I am not a proponent of all remote, and I think it was great to be able to move the ball forward for our clients so that justice could be move forward for everyone, but and so everyone would have access to justice because that was a problem if we all shut down like other states did.

Rocky Dhir: So great during pandemic is kind of what you’re —

Jennifer Doan: Yeah, but I’m from the east side of the state and so our federal courts never closed during pandemic. And so, I had, you know, a full-blown jury trial for Amazon in August of 2020 when most of the courts were doing anything yet.

Rocky Dhir: Sure.

Jennifer Doan: So, and then we were the first county, Bowie County which is the far northeast county of the state to come out of the pandemic because our area wasn’t quite as affected as Harris County or Travis County, et cetera, and there’s 254 counties in Texas and we’re all sort of really different.

Rocky Dhir: Right.

Jennifer Doan: But what I like is that, you know, some of the technology that we developed in courts really pushes ahead of decade really quickly so that all of a sudden you’re able to do other things that you wouldn’t have done before and while not every state courthouse like Megan said is equipped for this technology now as we sit here in the new Travis County Courthouse is. And so if you look in the new county courthouse in Travis County, here in Austin, I mean we have roving mics, they’re all over the courthouse so that everybody can be heard. We have cameras that are fully integrated. We have screens. So if you’re bringing an expert, say you’ve got an expert from Europe or something like that coming in that’s really expensive for one hour witness, you know, you want to bring them in remotely, you tell the jury about it, obviously during voir dire and we are talking to the jury but they can come in on a really big screen. The great thing about a big screen for witnesses coming in remotely, everybody can see that witness. It’s great to direct that witness and it’s great to cross that witness. When you got them on a little bitty TV screen or a little computer monitor, it’s very difficult for the jury to really see all of that. So you’ve got an in-person jury really like that. But there’s great things that we’ve talked a little bit about on the panel before that have lasted since the pandemic, like, we now have jury qualification that’s all remote so you’re not bringing in unqualified jurors that are taking up time and we’d also don’t waste their time either, you know.

Rocky Dhir: Or rack of fees.

Jennifer Doan: Or rack of fees for all that. So all of that is remote now and we also have remote jury questionnaire which I really like as a trial lawyer, we have jury questionnaires, they agreed to by both sides, and so they all go on social media. So they’re answering those questions and we get those in advance. So it really helps move quickly the voir dire process and, you know, as a plaintiff lawyer, you really like that. So you’re not just asking what’s your first name, what’s your last name, how many kids do you have, where you from, you know, that kind of thing.

Rocky Dhir: What do you do, yeah.

Jennifer Doan: Yeah, what your spouse do, et cetera, all that can be done all remotely, it’s also very confidential with the trial lawyers and with the judge, and with the court staff and with the jurors but we get that advanced moves really quickly through the process. It’s very nice.

Rocky Dhir: Now, Michelle, you’re a journalist. So you’re seeing this maybe from a different perspective. Some might say maybe at a higher elevation because you’re looking at this maybe throughout the state, you know, you’re having to report on these issues. So how in your view has the courtroom changed pre-pandemic, during pandemic and then post pandemic?

Michelle Casady: I would say that you know, Texas is large geographically so in early COVID, the early embrace of the Texas courts using the Zoom technology and live streaming proceedings really enabled me to cover courts more effectively I felt like that I never been able to do before.

Rocky Dhir: Okay.

Michelle Casady: More access to more hearings. For example, I couldn’t get to Far West Texas to cover a hearing the same day that something was happening in Harris County but via remote proceedings, I could do that. So that was really nice. Obviously, some of the courts that were reluctant to embrace the technology initially have taken the decreasing number of COVID cases as an opportunity to also decrease access to the courts. I understand that sometimes there are security concerns about why you wouldn’t want to live stream a proceeding but I think, generally speaking, it is a good thing for people to see how their courts are working.

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Rocky Dhir: Is it fair to say that we don’t have a uniform approach anymore to the extent to which we allow remote proceedings to move? I mean during the pandemic I think everybody was on the same page, we’re all going remote. It sounds like now the counties are kind of doing what they end — it might even be judge to judge doing what they want. So are we becoming more disparate now in our approach and do you think we need to have a more unified approach? Do we need some kind of regulation or guidance on the extent to which remote proceedings should be allowed to proceed? So Michelle, let’s start with you. It sounds like you might have a thought on that.

Michelle Casady: You know, I think that there is an important reasons to let the judges have discretion on what should be or could be live streamed and what shouldn’t be. But as a proponent of open courts, obviously I’m going to be on one side of that spectrum. But yeah, I think that there could be more uniformity, but I also think that you want to let the judges make decisions based on I mean, we’ve heard from judges today, even earlier in the panel talked about death threats that have been received based on certain decisions to live stream. So, you know, there are considerations that I don’t have first-hand experience with and I wouldn’t want to say that I could make that decision for that judge

Rocky Dhir: Fair enough. Okay, so now Jennifer, we’ll ask you next and since you’re a practitioner.

Jennifer Doan: Sure.

Rocky Dhir: To what extent do you think we need to try to get more uniformity?

Jennifer Doan: So I definitely think it’s judge-judge dependent currently now. And I think there’s a difference between civil trials with disputes between people and then criminal trials which would make me more secure and I don’t think that there’s any uniformity on opening that with criminal trials at the current, but there are some judges may. But on civil trials, I think it’s really different because some proceedings, I think are — how do I say this, so if you’re having it by Zoom anyway, like on a proceeding with the pro se person, or you’re having just a prove up hearing or you’re having a dispute that both sides agree, it’s totally fine to have by Zoom then usually, those are pretty much fine and not — there’s no security issues in a civil case. But there may be some issues where there are security issues or there’s a whole lot of other issues at play here that may think that lawyers are playing it up for the cameras and not representing their clients well, and I think that’s a real issue. We heard from last weekend in Santa Fe, the lawyer that represented Kyle Rittenhouse and y’all remember, he was the younger, he was a minority, a minor, when he was out there defending, I can’t remember what state he was in, but AK47, or whatever or R15, and the jury ended up acquitting him but the part of the trial that was a live and then there was so much coverage of it, and the reporters’ opinions of what should happen is the majority of America thought I can’t believe that all of a sudden these guys being acquitted. So I think the judges need to be able to self-assess that and I hard regulation might not fit every case with every judge, right.

Rocky Dhir: Judge Ferguson, what’s your take on this? Do we need more uniformity or are you happy with letting judges kind of use their discretion?

Judge Roy Ferguson: You know what we have now is a uniform rule and it lays out a uniform standard. The application I don’t think can be made uniform because the reality of every case is that the lawyers know it and the judge doesn’t, when they come to us. Every witness is different. Every client is different. Every hearing is different. If we prescribe the way the judges have to exercise their discretion, we are taking away from the lawyers, the ability to tell us what we should do and the judges that I think are most at ease with this hybrid or remote world that we’re moving into are the ones who acknowledge that it’s the lawyers who give us the information we need to properly exercise our discretion. It’s always true no matter what the issue is, it’s no different with this issue. And so because the rule is so new and legislation is still being pastor vetoed, as we sit here. In the last week, lawyers have not yet incorporated advocating under Rule 21(d) for remote as an active part of their case, they’re going to start seeing that this is a long-term preparation, just like discovery, just like everything else they do. They have to be preparing for how to use these options to best present their case. And as they get better at it, we get better at it because we don’t have the interaction yet. It’s so new. But I think that the rule that we have empowers the lawyers to ensure that they get to tell their judge what’s best under their facts and their case and requires the judge to exercise that discretion in a certain fixed range perhaps. So I like the rule, I think we’re all going to get better at it as we learn how to apply it.

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Jennifer Doan: But 21(d) deals with whether to have a remote proceeding or not, not necessarily whether there’s going to be live streamed or not. So there are two different issues there.

Rocky Dhir: Okay well guys, lots more to talk about but it looks like we’ve reached the end of our program. So I want to thank you guys for joining us today. There’s a lot more to discuss and I think you’ve left the listeners wanting more. So thank you all for being here.

Jennifer Doan: Thanks —

Judge Roy Ferguson: Thank you Rocky.

Rocky Dhir: If our listeners have questions or they need to follow up. What’s the best way to reach you guys? So Michelle, we can start with you.

Michelle Casady: I guess email, do you want me to spell it out?

Rocky Dhir: Please, go for it.

Michelle Casady: [email protected].

Rocky Dhir: Awesome, okay, Megan?

Megan LaVoie: You can contact me at [email protected].

Rocky Dhir: Nice, Jennifer.

Jennifer Doan: And you can contact me at our firm and my name is Jennifer Doan and my email is [email protected].

Rocky Dhir: And Judge Ferguson, we know you’re on Twitter so there’s —

Judge Roy Ferguson: Twitter is an easy way to reach me but I think the best way is through the court’s website which is texas3942h.com.

Rocky Dhir: Wonderful. Well guys that is all the time we have for this installment of the State Bar of Texas Podcast. Again, I want to thank our guests for joining us, thank y’all, and I want to thank you for listening and tuning in. if you like what you’ve heard, please rate and review us on Apple podcast, Google podcast, Spotify, Amazon Music or your favorite podcasting app. I’m Rocky Dhir, until next time, thanks for listening.

Outro: If you 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 Legal Talk Network on Twitter, Facebook and LinkedIn, or download the free app from Legal Talk 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, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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