What exactly is normal? How and when will we get back to normal in our criminal defense practice? When will we have a jury trial without having to wear a face mask or shield? When can we go to the courthouse without fear of contracting COVID-19 and bring it home to our loved ones? All are good questions, and the likely answer is we just do not know. However, with the rollout of multiple vaccines, a return to business as usual is on the horizon.
I do not think returning to normal will resemble what it did a year ago. With the use of Zoom, and the growing comfort with using it, I expect that the use of Zoom for certain court settings may continue. This may be especially true in rural areas where the district court serves multiple counties over a large geographical area. I do not think this is necessarily bad and may provide many rural practitioners the ability to become more efficient in their law practices. We should be considering what that future holds for use of Zoom as a practice tool, and when the opportunity presents itself, having this type of conversation with our local judges. I am not suggesting that we use Zoom for conducting a trial. I also do not believe we should use Zoom for substantive contested motions, such as a motion to revoke, motion to suppress, or motion to revoke bond, as it is in the client’s best interest to have the opportunity to appear and be heard in open court on matters such as these.
However, those of us who practice in rural areas are aware of the difficulties and limitations we sometimes experience in obtaining a setting on a preliminary pre-trial matter. Zoom offers us an alternative. I can think of several instances where using Zoom may be a preferable method to conducting a hearing for purposes of expediency, such as arraignment, preliminary or status pre-trial settings, contested pre-trial motions (so long as they are procedural in nature), and agreed-upon bond reductions and plea dispositions. Under limited circumstances, I can envision where using Zoom can provide a cost-effective way for an out-of-county witness to testify. This may be a double-edged sword and I would never agree to allow a complaining witness to testify via Zoom, as I believe it violates the client’s right to confrontation. But there are legal arguments to be made on both sides of this topic, and we need to be prepared to respond to the state’s and/or court’s requests regarding these types of testimony or witness issues.
It will be up to our local judges to decide if Zoom provides an efficient alternative for conducting future court business. I do think that some rural judges will continue using Zoom for the efficiency it provides and to reduce traveling to multiple counties for court appearances. As criminal defense lawyers, we need to adapt to this new normal, and either embrace its use or be prepared to object to how it is being used, depending on the circumstances. As such, our new normal may involve all of us becoming more fluent in the use of Zoom and digital evidence. I know that I have been on the lookout for CLE seminars on these very issues and topics. Everything changes over time. We either adapt or become extinct like the dinosaurs.
While a return to normal is what we are all waiting for, we need to embrace the technological advancements which have been made over the last year that in some cases have made the practice of law more efficient. I have always tried to stay ahead of the curve on the use of technology in my law practice and specifically in the courtroom. I remember the headaches I experienced when I first started using PowerPoint, and I found myself concerned about how to effectively use PowerPoint in my practice. I ended up taking a local community education class to educate myself on how to create and use PowerPoint presentations, and now I cannot imagine a scenario where I would not use PowerPoint during some phase of the trial proceedings. My point being that we should not be afraid to take advantage of the technological resources which are available, so long as we are willing to put in the time and effort to understand how best to utilize those resources.
I hope that we are back too normal soon because I miss being in the courtroom and socializing with my friends and colleagues at the courthouse. I miss making my argument in front of the judge, and not having to decide whether to view the Zoom proceeding in speaker or gallery mode. But when we finally start to get back to normal, I do think it will look different and that is not necessarily a bad thing. Embracing change can be difficult, but as criminal defense lawyers it offers us another opportunity to become better advocates. The technological advancements we have seen over the last 10 months is another way for us to provide better representation for our clients and work more efficiently. Normal in the future should involve all of us becoming more adept at these technological changes and striving to educate and train ourselves on how to best take advantage of them.
At some point in the future, I hope to see all of us gather for a seminar and telling war stories. Until then, be safe and stay TCDLA strong.