By Ben Solis
Gongwer News Service
Justice Richard Bernstein has long held that a person’s day in court was a sacrosanct aspect of a functioning democracy and its legal system and this month he publicly restated his opinion that courts should proceed in-person rather virtually on settings like Zoom.
But Bernstein, who has discussed his opinion on Zoom court proceedings in the past, and most recently in an editorial piece published by The Detroit News, recently told Gongwer News Service in an interview that decisions on streaming and holding virtual hearings are part of a local judge’s discretion, and should remain so without a mandate from the high court bench.
“I don’t have an objection at all to Zoom, and when necessary, I think it’s a wonderful tool that should be used,” Bernstein said. “My perspective is this: it comes down to what is the baseline? The baseline should be in person, but if there’s a reason to go on Zoom, then you should do it. That should be liberally constructed.”
Bernstein spoke with Gongwer to clarify his stance after The Detroit News published an opinion piece authored by himself, Justice David Viviano, U.S. District Judge Sean Cox of the Eastern District of Michigan and Wayne Circuit Judge Patricia Fresard. The crux of the opinion stated that although Zoom court has a place, the courts should endeavor to return to in-person proceedings – much like the businesses and corporations across the nation who have ended remote work for in person office work throughout the week.
Much like the question of remote office work and the productivity that comes with it, the question of how often courts should use Zoom or other virtual settings to hold proceedings – like motion hearings or even preliminary examinations – has been debated since the COVID-19 pandemic waned in severity.
What was initially an agreed upon, systemwide quasi-mandate from the Supreme Court bench to hold virtual proceedings and stream them on services like YouTube or other social media whenever possible has fallen to the wayside in some jurisdictions.
Some courts that had regularly streamed their sessions during the pandemic have since stopped, or limited streaming’s and Zoom’s use in their court rooms.
Bernstein, who is legally blind, previously discussed the challenges that he and other people with disabilities faced during the pandemic in an interview with Gongwer in early 2020. He cited the barriers of separation the pandemic created between people with disabilities and the environments they thrive in. Although he understood the necessity of that separation, he said that some people like him simply couldn’t thrive in a hyper virtual world.
He and Viviano reupped that opinion in their jointly written editorial piece published earlier this month in The News. They said holding virtual hearings is not always as efficient and can erode trust in the system.
Bernstein clarified his stance on Zoom proceedings when asked by Gongwer to elaborate on the article.
In speaking to Gongwer last week, Bernstein softened his stance a bit to say that Zoom court does have a place and should be used in certain circumstances but shouldn’t be the default option.
“Your baseline is, the assumption should be, that we’re going to have everything in person, that we’re in person. … The way it is now in a lot of courts is, we’re on Zoom unless we make an attempt to go in person,” Bernstein said. “All I’m saying is, it shouldn’t be that we’re just saying, ‘OK … we’re going to be on Zoom unless one of the parties requests in person.’ I just want to go the opposite way, which is, ‘we’re going to be in person unless one of the parties is opting to go on to Zoom.’”
Still, Bernstein’s call to do so did not come with a call from the high court bench to push through a mandate calling on all courts to proceed on that baseline.
“You need to let judges who know their court system (make those decisions),” Bernstein said. “You always want to defer to the individual judge because they know their community. It’s their court room. They know how best to administer both their administrative and judicial proceedings.”
What he was hoping for with his article, Bernstein said, was a spark of inspiration maybe for more judges to see in-person as the better starting point.
“Remember what it was like to do all these things in person, and why there was a benefit to it,” he said. “Why you became a judge, to preside in a real court room and not a virtual one.”
On what’s lost when courts proceed virtually at baseline, Bernstein said the experience of appearing in person matters.
“People wait for years to have their day in court,” he said. “If you wait years to have your story told, especially in the civil context. It’s something you’ve been striving and working toward, and you’ve gone through so much for that it should be your day. It also means doing that in person. There’s something about going to court, there’s a certain grandeur to it. There’s a certain regalness to the notion that you’re going to go into … all these beautifully constructed buildings so that justice can be done.”
The idea that the spaces between the pillars of justice would remain empty during those proceedings concerned him, Bernstein added.
“What is lost is that human connectivity that you have with a judge or a with a jury,” he said. “There’s a community, and there’s also a legal community, and it’s important that when you go to court, you see friends. Communities get built around the court and around the courthouse. There’s a wonderful camaraderie that develops among lawyers. It allows the proceedings to have a personal component that I believe is essential.”
As to what proceedings would be best for Zoom or virtual settings, Bernstein said things like scheduling orders or status conferences, things where it would be onerous for parties and their attorneys to travel long distances, fit the bill.
“I’d argue that anything could go forward on Zoom that was non-substantive, which would be more housekeeping,” he said. “Once you enter into kind of a substantive discussion of law or something that can really impact the case, and like a summary disposition motion, can definitely impact the case, that is the kind of thing that should be done in person. The case can end right there. Those are the kind so things where the in person (component) really matters.”
Gongwer News Service
Justice Richard Bernstein has long held that a person’s day in court was a sacrosanct aspect of a functioning democracy and its legal system and this month he publicly restated his opinion that courts should proceed in-person rather virtually on settings like Zoom.
But Bernstein, who has discussed his opinion on Zoom court proceedings in the past, and most recently in an editorial piece published by The Detroit News, recently told Gongwer News Service in an interview that decisions on streaming and holding virtual hearings are part of a local judge’s discretion, and should remain so without a mandate from the high court bench.
“I don’t have an objection at all to Zoom, and when necessary, I think it’s a wonderful tool that should be used,” Bernstein said. “My perspective is this: it comes down to what is the baseline? The baseline should be in person, but if there’s a reason to go on Zoom, then you should do it. That should be liberally constructed.”
Bernstein spoke with Gongwer to clarify his stance after The Detroit News published an opinion piece authored by himself, Justice David Viviano, U.S. District Judge Sean Cox of the Eastern District of Michigan and Wayne Circuit Judge Patricia Fresard. The crux of the opinion stated that although Zoom court has a place, the courts should endeavor to return to in-person proceedings – much like the businesses and corporations across the nation who have ended remote work for in person office work throughout the week.
Much like the question of remote office work and the productivity that comes with it, the question of how often courts should use Zoom or other virtual settings to hold proceedings – like motion hearings or even preliminary examinations – has been debated since the COVID-19 pandemic waned in severity.
What was initially an agreed upon, systemwide quasi-mandate from the Supreme Court bench to hold virtual proceedings and stream them on services like YouTube or other social media whenever possible has fallen to the wayside in some jurisdictions.
Some courts that had regularly streamed their sessions during the pandemic have since stopped, or limited streaming’s and Zoom’s use in their court rooms.
Bernstein, who is legally blind, previously discussed the challenges that he and other people with disabilities faced during the pandemic in an interview with Gongwer in early 2020. He cited the barriers of separation the pandemic created between people with disabilities and the environments they thrive in. Although he understood the necessity of that separation, he said that some people like him simply couldn’t thrive in a hyper virtual world.
He and Viviano reupped that opinion in their jointly written editorial piece published earlier this month in The News. They said holding virtual hearings is not always as efficient and can erode trust in the system.
Bernstein clarified his stance on Zoom proceedings when asked by Gongwer to elaborate on the article.
In speaking to Gongwer last week, Bernstein softened his stance a bit to say that Zoom court does have a place and should be used in certain circumstances but shouldn’t be the default option.
“Your baseline is, the assumption should be, that we’re going to have everything in person, that we’re in person. … The way it is now in a lot of courts is, we’re on Zoom unless we make an attempt to go in person,” Bernstein said. “All I’m saying is, it shouldn’t be that we’re just saying, ‘OK … we’re going to be on Zoom unless one of the parties requests in person.’ I just want to go the opposite way, which is, ‘we’re going to be in person unless one of the parties is opting to go on to Zoom.’”
Still, Bernstein’s call to do so did not come with a call from the high court bench to push through a mandate calling on all courts to proceed on that baseline.
“You need to let judges who know their court system (make those decisions),” Bernstein said. “You always want to defer to the individual judge because they know their community. It’s their court room. They know how best to administer both their administrative and judicial proceedings.”
What he was hoping for with his article, Bernstein said, was a spark of inspiration maybe for more judges to see in-person as the better starting point.
“Remember what it was like to do all these things in person, and why there was a benefit to it,” he said. “Why you became a judge, to preside in a real court room and not a virtual one.”
On what’s lost when courts proceed virtually at baseline, Bernstein said the experience of appearing in person matters.
“People wait for years to have their day in court,” he said. “If you wait years to have your story told, especially in the civil context. It’s something you’ve been striving and working toward, and you’ve gone through so much for that it should be your day. It also means doing that in person. There’s something about going to court, there’s a certain grandeur to it. There’s a certain regalness to the notion that you’re going to go into … all these beautifully constructed buildings so that justice can be done.”
The idea that the spaces between the pillars of justice would remain empty during those proceedings concerned him, Bernstein added.
“What is lost is that human connectivity that you have with a judge or a with a jury,” he said. “There’s a community, and there’s also a legal community, and it’s important that when you go to court, you see friends. Communities get built around the court and around the courthouse. There’s a wonderful camaraderie that develops among lawyers. It allows the proceedings to have a personal component that I believe is essential.”
As to what proceedings would be best for Zoom or virtual settings, Bernstein said things like scheduling orders or status conferences, things where it would be onerous for parties and their attorneys to travel long distances, fit the bill.
“I’d argue that anything could go forward on Zoom that was non-substantive, which would be more housekeeping,” he said. “Once you enter into kind of a substantive discussion of law or something that can really impact the case, and like a summary disposition motion, can definitely impact the case, that is the kind of thing that should be done in person. The case can end right there. Those are the kind so things where the in person (component) really matters.”
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