Saturday, March 25, 2023
When covid first hit and we were all in lockdown, a number of courts held proceedings virtually rather than live. Since then, questions have been raised about how the technology should continue to be used, given that it may make courts proceedings easier for litigants and witnesses to attend, but may also make it difficult to question hostile witnesses and present documentary evidence, as Scott Dodson, Lee Rosenthal, and Christopher Dodson discuss when weighing the benefits and drawbacks of Zoom proceedings.
There has not been a ton of empirical work on this (yet), but David Horton found that arbitrations conducted with at least one Zoom hearings resulted in worse outcomes for plaintiffs. And Jill Gross at Pace recently posted an analysis of customer win rates in FINRA arbitration. She found that early in the pandemic, customers who had at least one Zoom hearing fared substantially worse than customers who proceeded entirely live, though, as the pandemic wore on, the two became virtually indistinguishable. At least one explanation might be that, over time, customers were able to choose “mixed” formats more easily, where only one or two witnesses appeared by Zoom and most were live, making the Zoom category of cases indistinguishable from live ones. Another might simply be that customers had a Zoom learning curve. Mostly, though, she finds customers in general fared worse during lockdown, regardless of how hearings were conducted.
One question I have about Zoom, however, concerns not just the original hearings themselves, but the standard of review when the outcome is appealed. Not long ago, VC Laster issued an opinion reviewing the conclusions of Master Patricia W. Griffin. Reviews of Masters in Chancery are de novo, and VC Laster wrote, “The trial was recorded so that a constitutional judge could review the proceedings de novo.” Because it was de novo review, VC Laster, among other things, engaged in credibility determinations regarding witnesses (see op. at 5, 14), which he was able to do because he was seeing exactly what Master Griffin had seen.
Ordinarily, of course, a standard thing for appellate courts to say is that trial judges are in a unique position to determine the credibility of a witness. They do so even when the standard of review is de novo, see, e.g., State v. Emery, 2011 WL 3795021 (N.J. Sup. Ct. App. Div Aug. 29, 2011), and standards of review often shift from de novo to something more deferential if the question turns on determinations of credibility, see, e.g., State v. Godwin, 2004 WL 3217722 (Tex. Ct App. July 22, 2004); Burton v. State, 2007 WL 1417286 (Del. May 15, 2007). The fact that trial judges view witnesses live when appellate courts cannot is one reason for deferential review in the first place.
So my question is, if hearings are held by Zoom, and recorded (and there’s certainly no reason not to record), should appellate standards of review change? Or, perhaps more relevantly, will they change sub rosa even if they don’t change formally?