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| Joshua Sohn |
Most lawyers and judges have expressed satisfaction with these remote hearings,[1] and some have called for remote hearings to play a prominent role in civil litigation even after the pandemic is over.[2]
They note that remote hearings save travel time and expense,[3] which also improves attorney work-life balance and even reduces the carbon emissions that accompany jet travel.[4]
These points are all correct, but advocates for remote hearings actually undersell their case in one important respect. While they cite efficiency, work-life balance and environmental concerns, they generally fail to note how the Federal Rules of Civil Procedure also support their position.
Under the federal rules, there is a strong argument that courts should presumptively favor remote hearings that reduce travel costs, unless the court finds that an in-person hearing is necessary to do justice in the case before it.
This conclusion stems from two Federal Rules of Civil Procedure: Rule 78 and Rule 1.
Rule 78 empowers courts to adjudicate motions with or without hearings,[5] which implies the corollary power to decide what type of hearing is most appropriate.[6]
Rule 1 states that all the Federal Rules of Civil Procedure should be construed and administered "to secure the just, speedy, and inexpensive determination of every action and proceeding."[7]
Moreover, the 1993 advisory committee note to Rule 1 states that this rule "recognize[s] the affirmative duty of the court ... to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay."[8]
As the U.S. District Court for the Eastern District of Louisiana explained in 2020 in McClain v. Sysco New Orleans, "elimination of unjustifiable expense" is one of Rule 1's commands.[9]
With this in mind, consider the basic situation of a federal court faced with a civil motion. Unless the arguing lawyers are both local, holding an in-person hearing rather than a remote hearing will entail extra cost.
Often this cost will be significant: For example, a single lawyer traveling across the country for a hearing could easily rack up close to $1,000 in airplane, hotel and ground transportation fees.
But under Rule 1, courts have an affirmative duty to eliminate undue cost and unjustifiable expense.
Thus, when a court is considering whether to hold an in-person or remote hearing, it has an affirmative duty to consider whether the extra cost of an in-person hearing is justified and due.
In other words, remote hearings should be the default in civil litigation, while in-person hearings need to justify their existence.
In some situations, in-person hearings certainly will justify their existence. One example is evidentiary hearings, where a court must gauge the credibility of testifying witnesses. Commentators have noted that this is easier to do in person than over a video screen.[10]
Other bespoke situations might also call for in-person hearings. For example, hearings in federal patent cases sometimes feature elaborate 3D exhibits of the accused product, and courts might find it difficult to view such exhibits over a video screen.
But these situations are the exception, not the rule. Most civil hearings are essentially an oral colloquy between the lawyers and the court. This sort of colloquy can be done equally well over a telephone or videoconference line as opposed to in person.
This is true whether the hearing is for a low-stakes discovery motion or a crucial case-dispositive motion.
While an article in Judicature recently opined that "crucial or complex oral hearings, such as on a motion to dismiss, a Daubert motion, or a motion for summary judgment, may benefit from in-person advocacy, engagement, and sparring,"[11] this statement does not seem correct.
To the contrary, lawyers are fully able to engage and spar over a telephone line or video screen, as shown by the countless spirited and hard-fought motions that have been conducted remotely during the past two years.
In fact, remote hearings can actually improve the quality of oral advocacy, particularly for complex and hard-fought motions.
When a lawyer can conduct oral argument from her spacious office desk instead of a cramped courtroom podium, it is easier for her to spread out key documents that she may wish to rely on during her argument.
It is also easier for her or her assistants to print out additional documents on the fly, or even conduct quick fact-checks and legal research during her opponent's argument.
Surprisingly, federal courts rarely cite Rule 1 when considering in-person versus remote hearings,[12] and they even more rarely cite the Rule 1 advisory committee note about their affirmative duty to eliminate undue cost.[13]
This is unfortunate, as Rule 1 should be in the forefront of judges' minds when they consider this issue.
Of course, this does not mean every judge will reach the same conclusion about the relative merits of remote and in-person hearings.
Some judges may agree that remote hearings improve oral advocacy by giving lawyers a more flexible argument space and putting modern technology at their fingertips.
Other judges might find that the quality of advocacy is the same in remote and in-person hearings.
And still other judges may conclude, contrary to this article, that the grandeur and frisson of in-person hearings improves the quality of advocacy.
But even judges in this last category should recognize that costly in-person hearings are in some tension with Rule 1, and this should cause them to set more remote hearings at the margin.
For example, such judges might continue to favor in-person hearings for the most crucial or complex motions, while yielding to Rule 1 concerns and setting remote hearings for most other motions.
Federal judges have no duty to promote work-life balance or combat airplane emissions, but they do have a duty to eliminate undue costs in civil litigation. A preference for remote civil hearings would help discharge this duty.
Joshua L. Sohn is a trial attorney at the U.S. Department of Justice. He is a former of counsel at Quinn Emanuel Urquhart & Sullivan LLP, a former clerk at the U.S. Court of Appeals for the Ninth Circuit, and a graduate of Harvard Law School.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Justice, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See, e.g., Allie Reed and Madison Alder, Zoom Courts Will Stick Around as Virus Forces Seismic Change, Bloomberg Law, July 30, 2020, https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-change (quoting lawyers and judges who expressed satisfaction with remote hearings and noted their advantages over in-person hearings); Northern District judges may keep virtual hearings after pandemic, Daily Journal, Jan. 5, 2021, https://www.dailyjournal.com/articles/360982-northern-district-judges-may-keep-virtual-hearings-after-pandemic (same).
[2] Id.; see also Eric Scigliano, Zoom Court Is Changing How Justice Is Served, The Atlantic, May 2021 ("One leading booster, Michigan Chief Justice Bridget Mary McCormack, told me that going online can make courts not only safer but 'more transparent, more accessible, and more convenient.'"); Raffi Melkonian, Zoom Hearings: Might They Survive the End of the Pandemic?, The Bencher, Nov./Dec. 2021 at 22 (arguing that "courts and judges should keep video conference technology as one of their many tools").
[3] Scigliano, supra note 2 ("Witnesses, jurors, and litigants no longer need to miss hours of work and fight traffic. Attorneys with cases in multiple courts can jump from one to another by swiping on their phones.").
[4] Melkonian, supra note 2 ("the potential environmental and work-life balance benefits of video conferencing should play a role in our analysis. A lawyer who needs to travel less often reduces reliance on air travel and likely is happier and healthier too.").
[5] Fed. R. Civ. P. 78.
[6] Franz Chem. Corp. v. Philadelphia Quartz Co.
, 594 F.2d 146, 151 (5th Cir. 1979).[7] Fed. R. Civ. P. 1.
[8] Fed. R. Civ. P. 1, 1993 Advisory Committee Note.
[9] McClain v. Sysco New Orleans
, No. CV 19-1801, 2020 WL 11028497, at *13 (E.D. La. July 17, 2020) (quoting Steven Baicker-McKee, William M. Janssen, and John B. Corr, Federal Civil Rules Handbook 1 (2020 ed.)).[10] Scott Dodson, Lee H. Rosenthal, and Christopher L. Dodson, The Zooming of Federal Civil Litigation, Judicature Vol. 104, No. 3, Fall/Winter 2020-21 at 15 ("The need for credibility assessments of fact or percipient lay witnesses, especially hostile witnesses, can present a strong case for in-person engagement. Our adversarial system is designed for in-person confrontation and challenge, which can be difficult to replicate via videoconference.").
[11] Id.
[12] One of the rare exceptions is Ihde v. Colvin
, 270 F. Supp. 3d 956, 960 fn. 4 (W.D. Tex. 2017), which cites Rule 1 and discusses the virtues of remote hearings at length.[13] A search of Westlaw did not reveal any cases where courts cited the Advisory Committee Note when discussing the question of remote or in-person hearings.
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