Conducting Fair and Just Remote Hearings:

A BENCH GUIDE FOR JUDGES

Many courts have embraced innovative communication

technologies, especially videoconferencing platforms, to CORE ELEMENTS OF PROCEDURAL FAIRNESS
conduct routine hearings during the COVID-19 pandemic.
Although these technologies provide an effective • VOICE: the ability of litigants to participate in the
solution for managing cases until the pandemic abates, case by expressing their own viewpoints;
interpersonal communication in a remote platform differs • NEUTRALITY: the consistent application of legal
considerably from the in-person experience. These principles by unbiased decision makers who are
differences can affect whether litigants and other hearing transparent about how decisions are made;
participants believe they have been treated fairly. Courts
• RESPECT: individuals are treated with courtesy
must make procedural fairness (also called procedural and respect, including respect for people’s rights;
justice) for litigants the highest priority, regardless of
where proceedings take place, as litigant perceptions • TRUST: decision makers are perceived as sincere
of how they are treated have a greater impact on their and caring, trying to do the right thing;
acceptance of and compliance with court orders than • HELPFULNESS: litigants perceive court actors as
the actual outcome of hearings. This bench guide offers interested in their personal situation to the extent
practical tips for adapting judicial techniques to ensure that the law allows.
procedural fairness in remote hearings.

PREHEARING PREPARATION

Adjust calendaring practices to ensure sufficient time to Ensure that litigants have access to information and
give each case your full attention. resources to participate effectively in the hearing.
Preliminary reports suggest that remote hearings Providing a URL to the videoconferencing platform does
take longer than in-person hearings. Litigants who not necessarily ensure that litigants can participate
are unfamiliar with the technology platform or who effectively. Hearing notifications should be written in
have poor internet connectivity may need extra time to plain language and include information not only about
logon, present evidence, or make arguments. Litigant how to connect and participate on the platform, but
appearance rates also tend to be higher for hearings also how to access additional information to prepare
conducted remotely, eliminating the cushion of time for the hearing (e.g., gathering documents to present
that judges have come to expect by entering default as evidence, potential claims and defenses, etc.).
judgments or orders to dismiss for failure to prosecute. The notification should also communicate the court’s
“Zoom fatigue” is real; do not schedule more cases than expectations about litigant preparation for the hearing
you can realistically manage. (e.g., timeliness, formality of the hearing). Finally, some
litigants may require a foreign language interpreter or an
Review case files before hearings. accommodation under the Americans with Disabilities Act
Making direct eye contact shows litigants that you are to participate in a remote hearing. Ensure that the hearing
attentive and engaged, but this is difficult to do this while notification includes information on how to request such
simultaneously reviewing motions, briefs, and other assistance.
documents during the hearing. Advance preparation
shows respect by demonstrating your familiarity with Offer alternatives for litigants who lack devices or internet
litigants’ individual circumstances. access to participate remotely.
Courts should suggest community resources (e.g., public
schools, libraries, community centers) where litigants
can use computers or get access to a stable internet
connection, including, if possible, dedicated computer
kiosks or Zoom pods at the courthouse.

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 Remote Hearings Bench Guide

FAIR AND EFFECTIVE USE OF VIDEOCONFERENCING PLATFORMS

Use a “technical bailiff” to help litigants logon and Be careful not to overlook litigants who appear on the
troubleshoot on technical problems. screen as black boxes due to lack of webcams or unstable
The bailiff should rename litigants to indicate their full connectivity or who have called into the hearing on a
name, especially litigants using devices with default telephone line.
names (e.g., “Mom’s iPad”) or litigants who have called It is easier to engage with people whose faces you can
in on a telephone connection. The bailiff can also move see. Similarly, some viewing options on videoconference
litigants to waiting areas or breakout rooms staffed by platforms do not permit users to see all participants
ADR professionals, pro bono attorneys, or court staff who simultaneously. Make it practice to call on each person
can provide legal information or assistance while waiting to ensure that they are still present on the platform, have
for hearings to begin. heard everything that was said, and ask them if they have
anything else to add before closing the hearing.
Pay close attention to videoconference dashboards.
Many default platform settings require participants to Speak to the camera, not to the screen, and wait for
raise hands virtually or require the host to permit entrance litigants to finish speaking before responding.
from a virtual waiting room. Also be alert for hackers Looking directly at the webcam makes it appear that you
(Zoom bombing) disrupting the hearing. are looking directly at the trial participants, rather than off
to the side. In addition, looking through multiple screens
Unmute litigants and check that they can hear and be or databases during the hearing can make judges look
heard. distracted or disengaged. Finally, the delay in audio
Before starting the hearing, identify all participants to transmission sometimes causes people to speak over
ensure that everyone is present on the record. Provide each other. Wait for litigants to finish speaking before
a brief explanation to litigants on how to participate, responding.
including raising hands for permission to speak. If
litigants are represented by counsel, explain how they Ensure that litigants participating by telephone are
can communicate privately using breakout rooms or fully informed and have the opportunity to speak during
separate text communications. Before entering a final hearings.
judgment, check that all participants are still present on Litigants participating by telephone lack the visual cues
the platform, have heard everything that was said, and on which other participants rely to understand what is
had an opportunity to express their viewpoint. happening during the hearing. For example, they may not
know who is present for the hearing and they will not be
able to view documents or other evidence displayed on a
shared screen. Litigants participating by telephone also
do not have access to platform dashboard tools (e.g., to
raise hands to indicate their interest in speaking).

JUDGES’ CONDUCT DURING HEARINGS

Take time to explain the hearing’s purpose and Ask litigants about the location from which they are
procedures, and the basis for any decisions. participating.
Judges should avoid the urge to rush through cases by Not all litigants have a private, quiet place in which to
cutting off litigants or skipping explanations about the participate in the hearing. If they are participating from
basis for their decisions in an effort to clear calendars. a public area, they may not have the confidence or ability
Consider using a form or checklist judgment to explain to provide candid information. In addition, background
the legal reasoning for decisions. Use status conferences conversations or activities, including some that should
as an opportunity to advise litigants about upcoming be private, may be audible during the hearing and might
procedures and to connect them to other community even be captured on the videoconference recording.
resources. Always ask whether litigants have had an If this occurs, alert the litigant that you can hear the
opportunity to get legal assistance before entering final background conversations and ask them to move to a
judgments. more private location, if possible, or to tell the other
group that they can be overheard. Also ask whether
litigants have had an opportunity to get legal assistance
before entering final judgments.

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