Zoom court: Problems and solutions

A meeting celebrating Wikipedia's 20th birthday, conducted on Zoom due to the COVID-19 pandemic. 

Today you can do almost anything remotely. Want to tie the knot with that special someone in your life? You can do it through Zoom. Want to earn your degree? You can do that remotely now, even a law degree. Have you met your ultimate demise, and your relatives are saying goodbye one last time? Zoom has got you covered there, too.

Despite how much of our world has moved to myriad uses of optic fibers running underground, it seems like the legal system has been particularly resistant to opportunities associated with this new reality. This especially impacts rural communities, which often find themselves unable to hire and keep enough public defenders and prosecutors willing to live nearby and keep the criminal justice system running.

Background

Before getting to how the legal profession can step with both feet into the digital age, let’s zoom out a bit. Before the days of Zoom—and even before the days of the now defunct Skype—courts around the country toyed with the idea of remote assistance by counsel. Some efforts date to the 1990s. Back then, the technology was clearly nowhere near where it needed to be for it to be a reasonable alternative to in person attorney appearances. Most efforts were thus limited and they ended in the early 2000s.

Despite improvements in technology in the 2000s and 2010s, it was not until the 2020s that the idea of remote appearances by counsel made a comeback. When that happened, it wasn’t just a product of technological innovation, it was also a product of necessity. In early 2020, the COVID-19 pandemic shook the entire world, and our criminal justice system along with it. States around the country scrambled to find ways in which essential processes of life that required close quarters contact between people could be performed at a time in which we thought such contact could prove lethal.

And so, the legal system went remote in the way that prisons, schools, funeral homes, churches and most other institutions of American life did so. That is to say, hastily and inadequately. In her 2025 article, We Need to Talk: Modernizing Attorney-Client Jail Communications, Texas A&M School of Law Professor Cynthia Alkon reports the results of a nationwide survey of lawyers she conducted shortly after the start of the pandemic. Many of the respondents were criminal defense attorneys.

A bus somewhere in Bodega Bay, a village in Sonoma County, CA. Reaching Sonoma County's Superior Court from this starting point would probably take multiple buses and hours of time.

Some problems

The overwhelming majority of the attorneys responding to Alkon's survey reported concerns about the confidentiality of their remote meetings with their clients. This was not an abstract, unsubstantiated fear. Some of the article respondents reported incidents of guards and prosecutors listening in on their remote communications, of inmates not being in private rooms during their remote communications with their attorneys, and of deputies recording the calls and forwarding them to the police and to prosecutors.

Confidentiality, however, was not the only issue. Respondents of Professor Alkon’s survey also noted the difficulty of building rapport with clients when discussing private and sensitive subjects when they were not face to face. It was not only lawyers and clients who were having trouble connecting due to remote interactions, but also defendants and judges. In its 2020 report, The Impact of Video Proceedings on Fairness and Access to Justice in Court, the Brennan Center cites a 2010 study which found that defendants whose hearings were conducted over video had substantially higher bond amounts set than those who appeared in person (with the increases ranging from 50% to 90%).

Having all parties physically present in the courtroom also reinforces the gravity and seriousness of the proceedings. In the years since the COVID-19 pandemic, there have been multiple reports of criminal defendants being punished for not understanding the seriousness of their situation. For example, a St. Joseph County, Michigan, man found himself in trouble with Judge Jeffrey Middleton when he logged into virtual court with a colossaly inappropriate username. The man was called "an idiot" by the judge, and was placed in a Zoom breakout room as a punishment). In another tragic episode of Zoom court, a man from Washtenaw County, Michigan, found himself in hot water with Judge Cedric J. Simpson when he logged into virtual court from behind the wheel of a moving vehicle to answer to charges of driving with a suspended license (in an astonishing turn of events, the judge realized the man had never had a license, an ordered him to walk himself to the county jail). In perhaps the most extreme case, a Sacramento, California, surgeon logged into virtual court while operating on a patient. These are but a few examples of how the informality of remote platforms caused defendants to behave in ways that did not rise to the seriousness of their situation. Skeptics of remote court appearances and client counseling could certainly argue that defendants may not assist their attorneys with their own defense as effectively when the attorney is just a small picture in a computer.

Another issue that may affect outcomes for criminal defendants who are assisted by an attorney who is working remotely is that of the subtle communications that happened between client and attorney during court appearances. In an episode of the Center for Justice Innovation’s podcast In Practice, the hosts noted that public defenders who joined one of their virtual panels expressed concern about their ability to communicate with their clients through video conferencing. The panelists noted that public defenders often exchange quick whispers and other communications with defendants. The inability to do so can severely undermine outcomes for defendants.

Alpine County's Courthouse in Markleeville, CA. As of late 2024, everything was being conducted via Zoom.

Some solutions

The issue of confidentiality, while the most serious, may also be the most straightforward to solve—at least theoretically. In her article, Professor Alkon suggests that:

prosecutors’ offices should clearly, as a matter of policy, prohibit anyone in their offices from using information gathered through recordings of privileged attorney-client conversations.

In practice, these prohibitions must be enforced. How might that be achieved? They should be enforced exactly as they are enforced when there are intrusions upon face-to-face private communications between attorneys and criminal defendants. Potential remedies include suppressing evidence dervied from such intrusions, disqualification of the involved attorneys, sanctions, suspensions, or even disbarment. Perhaps this seemed difficult to implement while the world was scrambling in response to the COVID-19 pandemic, but there is no reason why it should be an insurmountable challenge today.

The rapport problem between lawyers and clients is a serious one, and it is one that might not have a simple solution. Perhaps video conferencing technology will eventually improve to the point where it is able to fully capture human presence and feelings, enabling lawyers to build affinity with clients across the state as if they were mere feet from each other. Until then, we might find solace in the fact that uncongenial assistance of counsel is a lot better than no assistance at all. Similarly, I think lawyers and courts can take extra efforts to impress the need on defendants to assist in their own defense.

As for the issue of the small interactions between client and attorney that are crucial to the process, this might be an area where courts can accommodate the needs of an evolving society. This would not be the first time the courts have had to be innovative and accomodating. For example, no one will argue that the need for interpreters in court does not slow down the process, or that it does not require some extra effort from judges and juries. Yet, it is clearly a cost worth bearing. With that in mind, I do not think that having a court appearance that takes a few more minutes due to the need to quickly go into a private breakout room is too high a price. Courts can experiment and find ways to make the process more agile, while always prioritizing the ability of defense lawyers to assist their clients.

Finally, it is perhaps best that defendants appear remotely as little as possible, to eliminate the potential prejudice that is hinted at by the more negative outcomes they face when they do so. At the same time, judges should receive training on the inherent biases that humans have when they hear and see a person through a screen as compared to face-to-face. Technology has progressed quite quickly in the last few decades, and it is normal for people's instincts and intuitions to lag behind such fast-paced development. This is no reason to discard the idea. Perhaps judges and juries today deliver more negative outcomes when parts of the process are conducted remotely. This need not be the case in the future. Part of the solution, as with many other things, may be education.

Conclusion

The potential issues examined in this article are not the only ones that may arise from the practice of remote criminal defense. A further examination may reveal others. However, what I hope this post can impress upon readers is that there is absolutely no reason to give up in the face of these challenges. These are, mostly, technical challenges. America has put a dozen men on the surface of the moon; it must be capable of putting two people in a confidential Zoom breakout room.