After his recent experience as a participant in an Emory Law School mock trial, family lawyer and mediator Randy Kessler discusses Zoom trials and how he thinks technology can help courts cope post-COVID with Family Lawyer Magazine‘s Publisher, Dan Couvrette.
How Technology Can Help Courts Cope Post-COVID & Conducting Trials Online
Dan Couvrette: I’m Dan Couvrette, the publisher of Family Lawyer Magazine and Divorce Magazine. It’s my pleasure to be speaking with Randy Kessler today about a trial that he recently conducted through the Emory Law School that was done using Zoom rather than an in-person trial. The date of this interview, by the way, is April 20, 2020, and the world is grappling with how we can go about our business lives as well as our personal lives during COVID-19.
Randy Kessler is a partner at Kessler & Solomiany, LLC a 30 person-family law firm in Atlanta, Georgia. Randy is the author of three books: Divorce: Protect Yourself, Your Kids, and Your Future; Library of Georgia Family Law Form; and How to Mediate a Divorce. He’s an adjunct professor of Family Law Litigation at Emory Law School. Randy has served as the Chair of the Family Law Section of the American Bar Association, the Georgia Bar Association, and the Atlantic Bar Association. I’ve known Randy for a long time, and it’s a real pleasure to be talking with him. He’s a very generous person, and he’s very involved in the legal community. Thank you for joining me today, Randy!
Randy Kessler: Thank you, what a great reason to get back together. Since we’re not traveling, I’m not seeing you at all these family law conferences. But it’s amazing the work that you all do in Family Lawyer Magazine and Divorce Magazine, and all these resources you’re giving to the public and to lawyers. So thank you for all you do. It’s nice to be able to be a part of it.
Thanks, Randy. So tell us a little bit about the trial that you recently conducted at the Emory Law School and how you used Zoom, and we’ll talk about the advantages and disadvantages. First, why don’t you just give us a bit of background about how this happened?
We’re talking about an incubator or perfect test tube environment. We teach a law school class at Emory Law School, and it is a real jury trial class. We teach how you try a jury trial, and it’s based on family fact patterns, because in Georgia, we do jury trials for divorce. Typically, in the first class, the students learn how to do opening statements, and they practice. They stand up and they do them. In the next class, they do direct examination, then closings, and cross-examination, and expert witnesses. And the final trial, the coup de grâce is when we go to the courthouse in Fulton County or DeKalb County, and we have real judges. There are two lawyers per side, two lawyers for mom and two lawyers for dad, and then we try the case with a jury in front of a judge in a real courtroom. We couldn’t do that this year.
Luckily, Emory has a great technology department, so we did the entire trial by Zoom. We had teams of two versus two, and we had four sets. Each team had an adjunct professor, a real Fulton County Superior judge, and an Emory Law School technology expert to make sure it went flawlessly. It did, and the feedback and the reactions have been great. There are some pros and some cons we’re going to get into, but it worked. And I know this is going to be the resource that judges across the state and maybe even across the country are going to use. They are going to say: Well, how did you overcome this issue? How did you deal with objections? How did you deal with sequestration? So I’m sure we’re going to talk about all that. But we got through, we got a verdict. We did not have jurors for this time, because it would have taken too long to get them all in there. But that’s not a hard thing to do anymore once the technology is in everybody’s hands, which it is, because everyone’s got a phone.
Most states don’t have juries anyway, it’s all just done in front of a judge, so that really wouldn’t be an issue in the future for most states. Some would be in Texas and Georgia. Maybe there are a couple of other states that have jury trials as well for family law?
That’s about it, if you have a tort claim, which is trial by jury and you add that in, then in some states you can do that. But you’re right, typically Georgia and Texas. Real judges in real courtrooms now are using it for trials and conferences, and it works. And there are a lot of benefits that we didn’t think about until we actually started doing it.
Let’s just talk about what doesn’t work about it – what you found to be a little bit challenging in terms of process. Then we’ll get down to talking about the benefits. What are the challenges?
The main challenge is fear. People are afraid their phone is going to die. Phone batteries can run out and computer batteries can run out. Also, there can be a lag time. During this interview, I’m sure there’ll be segments where my voice stutters or loses sync with the video or the image freezes. Those are minor because, in the real courtroom, you have people that have voice issues – they don’t modulate well. So those are really the issues: does the technology work? And we are also at the beginning of this technology; technology is not going to get worse in the future, it’s going to get seamless, and your 5G internet connection will be faster. Those were the problems we encountered.
A few of the other small problems included not being able to turn to your client and say: “Is this true?” Or “Can you write me a note?” But we can get around that. They can text me, they can send me a private chat. There really are workarounds for everything, but there are some issues. For example, can you really judge someone’s demeanor? But again, I think you’re outweighed by the pros. I can’t believe how many pros and positives I saw and thought about not just during the trial, but afterward as I reflected. There were not many cons.
So the pros are, number one, nobody had to leave home. Nobody had to use gas. Nobody had to pay for parking. Nobody had to wait in line at security. The courthouse didn’t have to use extra personnel. Everybody was on time. When does that happen? One big, unexpected, and unanticipated pro was that I could see myself. We don’t realize when we’re talking about how we appear. The first speech I ever gave 30 years ago, I paid someone to help me learn, and they just took a video of me talking so I could watch myself, and you can see that you’re rolling your eyes. If you’re making an argument, you start rolling your eyes and making comments. It shows up on your screen and it’s like looking at a mirror while you’re arguing. If you can figure out how to make sure you keep an eye on yourself or something as small as if your tie is crooked. That’s a real small benefit, but your appearance is everything sometimes, and if you don’t look good, and you don’t appear good, that could affect your case.
As you know in trial litigation courses they videotape people so that they can then play it back and show them. So this is real-time, and there are benefits to it. Do you think using Zoom will also make it more efficient? Did you find that the process was shorter than a normal trial would be, or do you think it was longer?
We got it done in half a day. It usually takes from eight in the morning and you have to get there early to park until five or six in the afternoon. We were done in three or four hours. And I’m finding that in my real cases, we’ve had cases now by Zoom and by audio conference, and some judges like Skype instead. But this is better for clients because it’s less money they have to pay since we charge by the hour. We go down to the courthouse at eight, we park, we wait, we get in line. There is usually another case before us – judges usually have five or six cases waiting in line in case somebody doesn’t show up they’ve got another case ready to go. They get on the phone with us for the call at nine o’clock, by nine-thirty we finish discussing the issue. And we’ve got direction from the court, and we hang up. 30 minutes is charged to the client, maybe a few minutes preparing before, and a few minutes after talking to an associate. But that’s it. That’s better for the client. And you’re exactly right, the time was better, and the clients pay for it.
Did you find that everybody felt comfortable being in front of their computer and using their camera? Did it make people more comfortable or less comfortable?
That’s another issue that might be a 50/50. When students were preparing for their exams, the professor said: We want you to look like you’re in court. You should dress the part. We want you to stand and argue your case. And some of the students said: Well, we’re law students, we don’t have big houses with lots of extra room. I’ve got my computer setup, so then I have to be sitting down to look at it. So they were a little uncomfortable, and there were dogs walking by sometimes for five or six hours. Someone’s going to have a dog that’s going to walk by their foot or come lick their hand. What do you do? Do you ignore it? I think that that’s just something people have to get used to, or they’ve got to find a better place. If you ask most Americans, I would think they would say, if I can do it from my house, I’d rather find a safe place in my house than have to figure out the uncomfortable courthouse that I’ve never been to. So, if the choice is between a courthouse and a house: I still think Zoom wins.
I’m a publisher, not a lawyer, so I’ve only been in a courthouse a few times on business. I wasn’t comfortable in that environment, so given the choice between going to court and using Zoom, I’d choose Zoom. We’ve all adapted to using cell phones, and younger people are quicker to adapt than older people, but we can all adapt, right?
Yes, we are adapting, and we’re getting better at it. Just like this interview.
Thinking about another negative, though – I’ve been around a long time. I know a lot of judges. I like a lot of judges. We’ve been through some battles together. There’s mutual respect, and some may not respect me. There’s something nice about walking into the courtroom and the judge seeing me and saying: “How are you? Remember that case we had three years ago?” There’s none of that anymore. On the one hand, I miss that. But it’s probably better for the clients. It makes it cleaner. It’s about business when you walk into a Zoom conference. There’s no break where you can go ask the judge how his wife’s doing. Both lawyers do this. But I think it makes it a little more efficient. So, yes, and that’s the new world. I think you’re right about young people, who are our future. I think a lot of them are saying: “Why haven’t we done this before? Why is it taking a virus to make us take advantage of the technology that exists?”
Think about how much money we’re saving. Think about the resources: the courthouse bathrooms that get used less, as silly as it sounds. The toilet paper, the paper towels, the snack machines being refilled, the elevators being crowded, the maintenance on the elevators, the bailiffs that we have to use to manage crowd control when there are too many people in the courtroom. The courts are all doing it. I’ve seen judges use virtual background so they’re doing it from their home, but they’ve taken a picture of their actual bench and their chambers to act as if they’re in court.
In Georgia, I’ve read that some criminal trials are actually taking place using Zoom now, is that correct?
They are starting to do those. I’ve not heard of a jury trial yet. Right now, I think it would have to be by agreement because you have to get jurors that are okay with using the technology so they’re not worried about their privacy. I actually have a final trial coming up, it’s going to be by arbitration, we chose a private judge. This Friday, in a few days, we’re having a final trial by Zoom. There are issues like the rule of sequestration, where witnesses are not allowed to sit in the courtroom so they don’t just hear and parrot the testimony of a previous witness. Well Zoom has a function called the ‘Wait Room’, where they sit there, and then they get brought in, and then they get removed, or the lawyers want to talk to the judge privately.
I look forward to hearing back from you after your trial on Friday so you can let me know how that goes. Is there anything else you think we need to cover?
There is one more thing. One more thing that was interesting was objections. When the Judge, this powerful human being, is speaking, it’s very hard to interrupt and say, “Judge, I’d like to object.” So they just held up objection paddles, a little paddle or a little sign that said “Objection!”
My wife might try and do that with me, so don’t mention that to her, okay?
Sorry, I’ll send you one on the house!
I noticed during the trial that every now and then the judge was taking notes, so somebody had to speak up and say “Your Honor,” and the judge would look up and see immediately, and it made the judges pay attention too because they knew if they weren’t looking they might miss something. I think all around, it was a good experience.
So they can’t fall asleep in the courtroom as they may sometimes do.
Yeah, they might want audio conferences instead of Zoom conferences every now and then.
Well, it’s exciting, and as you said at the beginning, it’s so unfortunate that we’re having to make this change and take more advantage of technology because of COVID. But if this makes life easier in the future, we’re all for it at Family Lawyer Magazine and anything that helps lawyers, anything that helps people going through a divorce and reduces the cost, frustration, and anxiety. All these things will help people come out of the process in better shape.
Absolutely, keep up the good work. You guys are doing so much for so many in a unique time. There’s got to be some silver lining and maybe this is it.
Thank you again, Randy, for joining me to discuss how you think technology can help courts cope post-COVID. If people want to find out more about Randy Kessler, please go to his law firm website: www.KSFamilyLaw.com.