Q&A Interview with Judge Matthew Williams
1. What challenges have there been to the bench for conducting remote trials?
We faced challenges at each step of trial as we moved through the process of figuring out how to keep trials going during the pandemic. Fortunately, we have had terrific partnerships with the members of the bar and our staff.
The biggest challenge has been our own preconceptions. We have a 200+ year history of in- person oral advocacy. Most of us know no other way of conceptualizing how a justice system can work. Pandemic forced us to consider and to try technology solutions that we had never considered and it required us to move well beyond our comfort zones. Along the way we learned that most of our preconceptions about the challenges and benefits of remote trials were incorrect.
Many of the things we learned are completely counter-intuitive to those of us that spent our careers in the courtroom. We learned that we could create a MORE inclusive and diverse space. We learned that most jurors (and attorneys) are able to focus and be attentive with (ironically) fewer distractions than if they were in the courtroom. We had to learn to pay attention to subtle tells or “micro-expressions” rather than overt body language.
We had to learn the video platform technology AND we had to create internal and external training on both the technology platforms. We had to learn how trial techniques are just a little bit different than in person techniques (especially exhibit handling). And most important, we had to make sure that our use of technology supplemented our in-court operations, rather than replaced them.
The biggest challenge has been our own preconceptions. We have a 200+ year history of in- person oral advocacy. Most of us know no other way of conceptualizing how a justice system can work. Pandemic forced us to consider and to try technology solutions that we had never considered and it required us to move well beyond our comfort zones. Along the way we learned that most of our preconceptions about the challenges and benefits of remote trials were incorrect.
Many of the things we learned are completely counter-intuitive to those of us that spent our careers in the courtroom. We learned that we could create a MORE inclusive and diverse space. We learned that most jurors (and attorneys) are able to focus and be attentive with (ironically) fewer distractions than if they were in the courtroom. We had to learn to pay attention to subtle tells or “micro-expressions” rather than overt body language.
We had to learn the video platform technology AND we had to create internal and external training on both the technology platforms. We had to learn how trial techniques are just a little bit different than in person techniques (especially exhibit handling). And most important, we had to make sure that our use of technology supplemented our in-court operations, rather than replaced them.
2. What changes has the bench had to make to prepare for each remote trial?
One big change was making sure that the parties (and the court) were ready for both remote jury operations and remote exhibit handling. The pre-trial conference and order detailing the trial processes took on heightened importance in every case. Now, our standard pre-trial order is sixteen pages long and it details everything from exhibit filing and handling, submission of questions for the case specific juror questionnaire, voir dire procedures, as well as video court practices and norms.
Our judges and bailiffs have to work closely with our Jury Department and have become much more involved in the pre-voir dire process, to include the transmission of the juror questionnaire, compilation of results, and management of the voir dire panels.
Our judges and bailiffs work proactively with the Clerk’s office and counsel to make sure that exhibits and depositions are properly filed.
Our judges and bailiffs have to work closely with our Jury Department and have become much more involved in the pre-voir dire process, to include the transmission of the juror questionnaire, compilation of results, and management of the voir dire panels.
Our judges and bailiffs work proactively with the Clerk’s office and counsel to make sure that exhibits and depositions are properly filed.
Finally, our judges and bailiffs have to make sure that the video meeting is up, and we have to have back-up plans in place in case one or more participants loses connectivity (which doesn’t happen nearly as often as you might think).
3. Has the advent of remote voir dire changed the composition of the venire or jurors? How so?
We worked hard to make sure that our processes did not exclude anyone from jury service. Our procedures really just ADDED the opportunity for jurors to participate remotely. We gave a lot of thought and built several alternatives for jurors who (for whatever reason) were unwilling or unable to participate remotely.
As a result, our judges uniformly report a significant increase in the diversity of our jury pools and the individuals who wind up selected to serve on the jury.
These anecdotal observations seem to be supported by preliminary studies that are currently underway by outside organizations.
When you stop and think about the socio-economic divide, these results make sense. More people own a cell-phone than own a car or even a bus pass. It is easier for an hourly worker who is struggling to make ends meet to participate in a pre-scheduled, 90-minute voir dire session, rather than to have to take two days off from work, come down to the court-house, and wait on the convenience of the attorneys and the judge.
When we talk about the composition of jury pools, we need to remember the impact of pandemic itself. Health care workers, teachers, and many other professions are in short supply. Parents are struggling with child care. Many workers lost their jobs, or have finally found new ones and can’t afford to take off the time necessary to serve on a 2-6+ week trial. This effect isn’t a result of remote trials, just the effects of these very difficult times we are all going through.
As a result, our judges uniformly report a significant increase in the diversity of our jury pools and the individuals who wind up selected to serve on the jury.
These anecdotal observations seem to be supported by preliminary studies that are currently underway by outside organizations.
When you stop and think about the socio-economic divide, these results make sense. More people own a cell-phone than own a car or even a bus pass. It is easier for an hourly worker who is struggling to make ends meet to participate in a pre-scheduled, 90-minute voir dire session, rather than to have to take two days off from work, come down to the court-house, and wait on the convenience of the attorneys and the judge.
When we talk about the composition of jury pools, we need to remember the impact of pandemic itself. Health care workers, teachers, and many other professions are in short supply. Parents are struggling with child care. Many workers lost their jobs, or have finally found new ones and can’t afford to take off the time necessary to serve on a 2-6+ week trial. This effect isn’t a result of remote trials, just the effects of these very difficult times we are all going through.
4. What feedback have you received from jurors regarding remote voir dire?
Generally, they like it. A lot.
They feel safer in answering person questions because they are in their own space. They like the fact that people can’t talk on top of each other to the same degree they can during in- person voir dire. I’ve had several jurors say that they feel more respected by the attorneys and by other jurors.
They like it when lawyers reference the information that has already been collected in jury questionnaires rather than asking “raise your hand” type questions. They like the fact that they get to participate more with questions directed to them as individuals. They don’t like it when the lawyers try to argue with them or give them lectures (but that is true during in- person voir dire as well).
They feel safer in answering person questions because they are in their own space. They like the fact that people can’t talk on top of each other to the same degree they can during in- person voir dire. I’ve had several jurors say that they feel more respected by the attorneys and by other jurors.
They like it when lawyers reference the information that has already been collected in jury questionnaires rather than asking “raise your hand” type questions. They like the fact that they get to participate more with questions directed to them as individuals. They don’t like it when the lawyers try to argue with them or give them lectures (but that is true during in- person voir dire as well).
A few jurors prefer in-person voir dire. Usually, this is because they are unfamiliar with the video platform. However, it seems that this discomfort is becoming less of an issue as pandemic continues. Regardless, we accommodate them. For those jurors, we make sure that they have the opportunity to come to a courthouse and participate from the courtroom.
The main thing the jurors seem appreciate is how respectful the remote process is of THEIR time. They have a defined time to be available. They don’t have to commute. They don’t have to find parking or worry about a bus connection. They don’t have to sit and wait doing nothing. They don’t have to worry about safety issues when they come into the alien environment that most courthouses represent to anyone who doesn’t work here.
The main thing the jurors seem appreciate is how respectful the remote process is of THEIR time. They have a defined time to be available. They don’t have to commute. They don’t have to find parking or worry about a bus connection. They don’t have to sit and wait doing nothing. They don’t have to worry about safety issues when they come into the alien environment that most courthouses represent to anyone who doesn’t work here.
5. What are the most effective techniques you have seen for remote trials?
Understanding the Visual Field: When an attorney is trying a remote trial, they (and their client…and the witness) are sitting about three feet from each juror. The jurors can SEE them. In detail.
I’ve had jurors comment about the “micro-expressions” of the witnesses, the lawyers, and the clients. So, its important for attorneys to be aware of, and to manage, that visual field.
It’s also important to remember that the virtual space is much more intimate than the physical courtroom. Aggression and theatrics do not play well. In a courtroom aggressive examination directed at a witness isn’t perceived by the juror as being directed at THEM. In a remote trial, the juror sees what the witness sees.
However, substance and civility play very well. Attorneys find that when they “control the visual” of the remote trial, they are better able to focus jurors on substantive issues. They just remember to “see” the trial from the perspective of the juror.
Preparation: Practice, Practice, Practice!
Know the video platform and learn how to seamlessly share your exhibits. Jurors are understanding, but they don’t like it when the attorneys (or the Court) fumble with exhibits. The best presenters have PLANNED their examination and exhibits. They have exhibits ready to screen share as soon as they have permission. They have thought through how they will transmit, file with the court, show a witness, and authenticate exhibits on cross examination (these 5 methods are covered in our training videos!).
The best presenters have tested their devices and connection, as well as the devices and connections of their witnesses. They have thought about the visual they (and their witness) present.
The best presenters USE their exhibits with their witnesses, so that the jury can follow the substance of the testimony both audibly and visually.
I’ve had jurors comment about the “micro-expressions” of the witnesses, the lawyers, and the clients. So, its important for attorneys to be aware of, and to manage, that visual field.
It’s also important to remember that the virtual space is much more intimate than the physical courtroom. Aggression and theatrics do not play well. In a courtroom aggressive examination directed at a witness isn’t perceived by the juror as being directed at THEM. In a remote trial, the juror sees what the witness sees.
However, substance and civility play very well. Attorneys find that when they “control the visual” of the remote trial, they are better able to focus jurors on substantive issues. They just remember to “see” the trial from the perspective of the juror.
Preparation: Practice, Practice, Practice!
Know the video platform and learn how to seamlessly share your exhibits. Jurors are understanding, but they don’t like it when the attorneys (or the Court) fumble with exhibits. The best presenters have PLANNED their examination and exhibits. They have exhibits ready to screen share as soon as they have permission. They have thought through how they will transmit, file with the court, show a witness, and authenticate exhibits on cross examination (these 5 methods are covered in our training videos!).
The best presenters have tested their devices and connection, as well as the devices and connections of their witnesses. They have thought about the visual they (and their witness) present.
The best presenters USE their exhibits with their witnesses, so that the jury can follow the substance of the testimony both audibly and visually.
6. Have you seen a change in how parties are presenting their evidence? If so, what kind of changes?
Absolutely.
As lawyers gain more experience, fewer and fewer are trying to replicate the courtroom experience by standing at a podium in their offices. Lawyers are starting to make greater use of the intimacy of the platform and the experience. Lawyers are starting to take greater CONTROL over the visual that they (and their witnesses) present.
As lawyers gain more experience, fewer and fewer are trying to replicate the courtroom experience by standing at a podium in their offices. Lawyers are starting to make greater use of the intimacy of the platform and the experience. Lawyers are starting to take greater CONTROL over the visual that they (and their witnesses) present.
7. What changes have you observed regarding trial preparation for attorneys?
Greater planning around voir dire and exhibits handling are the top preparation changes.
The jury questionnaire gives lawyers a lot of case specific information about each juror. We let the lawyers have input as to what is asked in that questionnaire. More prepared lawyers try to get their “targeting” questions in the questionnaire, so they don’t have to ask “raise your hand” questions to the panel.
So instead of saying “everyone who has made a claim for damages raise your hand”, a lawyer would say “Jurors 6, 12, and 13, I see from the questionnaire that each of you has made a claim for damages…Juror 6 would you feel comfortable telling me about that?”. This makes the lawyer seem much more engaged to the individual jurors, and the lawyers acquire amazingly personal information from jurors who would have been unlikely to share in the courtroom.
In terms of exhibit handling, it’s important to remember the limits of our current video platforms. What the witness sees, the jury sees. As a result, the pre-trial Joint Statement of Evidence is very important. If a lawyer is going to mark and authenticate an exhibit on fly during trial, they have to plan how they are going to get it in front of the witness without showing it to the jury. (Spoiler alert: It’s in the training videos!)
The jury questionnaire gives lawyers a lot of case specific information about each juror. We let the lawyers have input as to what is asked in that questionnaire. More prepared lawyers try to get their “targeting” questions in the questionnaire, so they don’t have to ask “raise your hand” questions to the panel.
So instead of saying “everyone who has made a claim for damages raise your hand”, a lawyer would say “Jurors 6, 12, and 13, I see from the questionnaire that each of you has made a claim for damages…Juror 6 would you feel comfortable telling me about that?”. This makes the lawyer seem much more engaged to the individual jurors, and the lawyers acquire amazingly personal information from jurors who would have been unlikely to share in the courtroom.
In terms of exhibit handling, it’s important to remember the limits of our current video platforms. What the witness sees, the jury sees. As a result, the pre-trial Joint Statement of Evidence is very important. If a lawyer is going to mark and authenticate an exhibit on fly during trial, they have to plan how they are going to get it in front of the witness without showing it to the jury. (Spoiler alert: It’s in the training videos!)
8. What kind of technical issues have you observed or experienced with remote trials?
Connectivity is the technical issue that most frequently comes to mind. However, we are finding that (with planning) it’s not as big an issue as we thought it might be. The connectivity issue boils down to Device Access and Wifi Connection/Bandwidth. With proper pre-trial planning these issues can be overcome, even in remote areas. In fact, we can use remote court hearings to improve court access by allowing parties who would have to drive hours to attend live court, by using the wifi infrastructure that has been built out in many community libraries and community centers.
Improvement of display technologies by the lawyers and the Court has also been on our radar. We’ve upgraded all of our courtrooms to provide large screens that can be projected into the gallery with an upgraded sound system to create a better record. This is a great improvement over the first remote trials, where we simply set up a second laptop in the courtroom facing the gallery.
Improvement of display technologies by the lawyers and the Court has also been on our radar. We’ve upgraded all of our courtrooms to provide large screens that can be projected into the gallery with an upgraded sound system to create a better record. This is a great improvement over the first remote trials, where we simply set up a second laptop in the courtroom facing the gallery.
9. The Supreme Court is considering a permanent change to allow remote trials. What are your thoughts?
The State of Washington has been a national leader in adopting innovative rules to serve our commitment to justice. In enacting these rules, our Courts and the members of our bar have recognized that our justice system cannot function as if we live in the 1800’s. As just two examples, we adopted ER 413 and GR 37. The State of Washington continues to serve as a beacon of open and accessible justice.
In Early 2020 The National Center for State Courts made this prophetic observation:
In Early 2020 The National Center for State Courts made this prophetic observation:
“Pandemic perspective” has changed perceived limitations…. When the pandemic is over, newly gained capabilities and expectations will have changed the world. It will not be possible or even desirable to return to pre-pandemic norms.
Strategic Issues to Consider when Starting Virtual Hearings, Joint Technology Quick Response Bulletin, National Center for State Courts, p. 4-5 (April 7, 2020).
All that being said, remote trials are not for every case. Ironically, in many cases they work better than in-person trials, but they are not a universal panacea.
The key is that we need to have the ability and the option to conduct remote trials when it makes sense. The proposed rules allow that flexibility. They also allow counsel and the Courts to have discussions about whether a particular case is appropriate for remote trial without that discussion being derailed by one parties’ preconceptions. The proposed rules allow the Court to make the right choice for each case.
10. If a permanent change was made to allow remote trials, what permanent, technical changes would need to be made to allow remote trials to occur?
Best practices are still evolving for both the bench and for the bar. At this point, there are two issues that courts and the bar should be considering.
- How to best integrate the virtual trial into the physical courtroom. In our Court this was done with the installation of large screens and an upgraded audio system. There are undoubtedly other solutions.
- How to make sure that lawyers, judges and their staff are best trained in this form of advocacy. The reality is that remote advocacy and hearings are not going away. But the remote nature of these proceeding requires slightly different skill sets for judges and lawyers.
11. Do you see new courthouses changing to reflect remote trials? If so, what changes do you foresee?
Yes, but these changes were probably coming anyway even before we started thinking about remote trials.
It’s important to remember Remote hearings have been a fact of life in many courts for over a decade. In Washington State, many of our courts have conducted remote video appearances from inside correctional institutions with small rooms where counsel and their clients appeared via video/audio connection into main courthouse courtroom.
I’m hesitant to try to predict the future here. We are still learning and creating Best Practices for remote trials. However, as the use of remote trials becomes more of a national phenomenon, I believe that there are at least two forces that may influence our future courtroom design.
First: An evolving understanding Social justice and Accessibility. Increasingly, our society views the ability to access important events via remote means as an important part of access. For courtrooms to have the ability to allow more jurors to serve, more parties to connect to the justice system means that our future courtrooms need to have the connectivity infrastructure to meet those societal expectations. What does that mean in the short term? Monitors and Bandwidth.
Second: Economic drivers including location and design of Courthouses.
Some employers including corporations, businesses, and counsel moved their staff off site during pandemic. Some have found this to be more economical than providing physical office space. Some employers have moved employees to locations where their floorspace costs are lower because it was no longer necessary for them to be in close proximity.
It is possible that remote trials may require less physical space for a “video courtroom” than for an in-person courtroom. (the jury is still out on that one!). It is also possible that these concepts could influence the design of separate types of courtrooms for different types of trials. It is possible that future courthouse designers might consider whether some court staff might be able to perform some functions from locations that are not within the courtroom itself. It possible that future courtrooms will be designed around a virtual space rather than a physical one.
All of those speculations are feasible. However, we must remember that our Best Practices are still evolving, and any future courtroom design will have to have the flexibility to accommodate technologies and processes that are still being developed.
It’s important to remember Remote hearings have been a fact of life in many courts for over a decade. In Washington State, many of our courts have conducted remote video appearances from inside correctional institutions with small rooms where counsel and their clients appeared via video/audio connection into main courthouse courtroom.
I’m hesitant to try to predict the future here. We are still learning and creating Best Practices for remote trials. However, as the use of remote trials becomes more of a national phenomenon, I believe that there are at least two forces that may influence our future courtroom design.
First: An evolving understanding Social justice and Accessibility. Increasingly, our society views the ability to access important events via remote means as an important part of access. For courtrooms to have the ability to allow more jurors to serve, more parties to connect to the justice system means that our future courtrooms need to have the connectivity infrastructure to meet those societal expectations. What does that mean in the short term? Monitors and Bandwidth.
Second: Economic drivers including location and design of Courthouses.
Some employers including corporations, businesses, and counsel moved their staff off site during pandemic. Some have found this to be more economical than providing physical office space. Some employers have moved employees to locations where their floorspace costs are lower because it was no longer necessary for them to be in close proximity.
It is possible that remote trials may require less physical space for a “video courtroom” than for an in-person courtroom. (the jury is still out on that one!). It is also possible that these concepts could influence the design of separate types of courtrooms for different types of trials. It is possible that future courthouse designers might consider whether some court staff might be able to perform some functions from locations that are not within the courtroom itself. It possible that future courtrooms will be designed around a virtual space rather than a physical one.
All of those speculations are feasible. However, we must remember that our Best Practices are still evolving, and any future courtroom design will have to have the flexibility to accommodate technologies and processes that are still being developed.