By Judge Sharon L. Kalemkiarian
This piece was originally published in the California Judges Association online newsletter, “The Voice.”
Last weekend I tuned into a “streamed” performance by the award winning tap-dancer Ayodel Casel. The performance was filmed at the Joyce Theater, a large, well-known, professional dance theater in New York City. As I watched the jaw-dropping artistry of her and her five tap-dancing colleagues, I was struck by what I was missing.
Every time her shoe hit the floor, I heard the noise but I couldn’t feel the vibration. As she riffed through an improvisation with Afro-Cuban pianist Arturo O’Farrill, I could not hear her breath quicken or see his fingers flex. There was a great deal of visual coordination between the five tap-dancers, but through the screen I couldn’t catch the “aura” of their joy as they collaborated and created together. And the number offered by the jazz vocalist Crystal Monee Hall about the “magic” within all of us “blew the roof off” the place. But it was hard for me to feel that roof come off when sitting in my easy chair.
We all have some favorite memory of a live dance, music or theater performance. We go to aperformance to see artistry in all of its immediate glory and wonder. We hope to experience, during the best of performances, some personal growth. Perhaps even an epiphany. And for a moment, we feel like we have entered a different world, one that belongs to the artist.
Our performance — and let me call it that for a moment — is in the courtroom, with other “players” sitting at counsel table, in the jury box, or on the witness stand. The deputy and the clerk also have their roles to play. Our purpose, of course, is not to entertain but to do justice.
Now that my courtroom has been reopened to in-person family law trials, I am struck by how much everyone’s experience in the courtroom was compromised during remote proceedings. I’m not referring to hearings that are merely procedural, such as an arraignment or a case management conference. I am referring to hearings that involve taking testimony, presenting evidence, and listening to argument. Since March 2020, I had been conducting all proceedings in my family law trial department remotely. Two weeks ago, we opened my courtroom to proceedings in-person — socially distanced, with Plexiglas and masks in place, but in-person nonetheless.
The difference has been dramatic — more than I would have honestly anticipated. First, all of the players are back in my theater — the courtroom. We design courtrooms, even in the smallest rural county, to have a level of formality and solemnity. There are United States and California flags and a state seal. The judge sits apart from, and usually above, everyone else in the courtroom. The litigants and their counsel have a special place to sit. There is good lighting, water in the pitchers, and a deputy in uniform to keep the peace. The clerk sits at her desk assisting the Judge. What is projected is the score for the day: this is serious business. You will be expected to act accordingly.
That formality and solemnity is entirely missing in a remote proceeding. While that formality may intimidate a bit, it is intended to. But on the screen, the litigants and counsel can’t fully see the bench — usually just my head and shoulders, with just a glimpse of the flags behind me. When litigants sit in their lawyer’s office or in their car, or witnesses testify from their dining room table or (god forbid) the bathroom, you lose formality and solemnity. This affects how people behave during the proceedings, and how they view the proceedings. For the judge, you want to deliver a ruling to someone sitting in front of you, not to a face or circle on a screen. I can only imagine that for litigants, receiving the ruling remotely doesn’t feel as immediate or serious as when they are in the courtroom.
Remote hearings rob the judicial officer (and other participants) of the nuances in the “performance.” A sensory deficit is created because we can’t see everyone all the time during the remote proceeding. We need multiple cameras, which of course we don’t have. So I can’t usually see when a litigant listening to testimony might be passing a note to their lawyer, or making faces, or getting agitated off screen. Or if a witness is being improperly prompted during their testimony. Witnesses are often self-conscious of being on screen, especially because they can see themselves at the bottom of the monitor when they are speaking. This affects their testimony. And just as their performance is filtered by the remote transmission, so is mine. It is harder for participants to catch the nuances of my performance. When I turn my back to reach for something, am I reaching my code book or a box of Kleenex? And my facial expression or body language is being read from afar, and I may also be conscious of the screen.
It is almost impossible for anyone to collaborate during an online proceeding. In the courtroom, at least in a family law trial, counsel and the judge will communicate quite a bit during a trial. I’ll let them know where to focus their questioning. Often I will ask them to go outside and talk during the break about one issue or another, and see if with a bit of direction from me, they can settle some items. This just can’t happen online — the platform is cumbersome, connections get dropped, and I simply can’t persuade as well through a screen. Likewise, litigants can’t often easily speak with their counsel. If they are sitting in different rooms on separate laptops, they can only talk to each other by asking me to stop the proceeding, or by picking up a cell phone. If they sitting next to each other at their location, they can chat, but my view of them is so much smaller.
And then, “auras” just don’t project over a screen. Oxford languages defines “aura” as “the distinctive atmosphere or quality that seems to surround and be generated by a person, thing, or place.” In the theater, the “aura” comes from the theater itself, as well as from the quality projected by the performer. When listening to a witness, I am as much assessing their aura as I am their words. When judging credibility or sincerity, as the trier of fact I am handicapped when I can’t feel what is happening between that witness and the attorney. Or that witness and a party. Or that witness and me. Assessing the “atmosphere” of a case requires people to be together in the room. Lawyers know this. Effective lawyers calibrate their examination and cross-examination to the “aura” of the witness. This is very difficult to do online.
I do not fool myself into thinking that I have any “magic” influence over litigants when giving my rulings. But I always explain my rulings, encouraging parents to cooperate for the sake of their child, and to move on with their lives. On occasion, my comments are taken to heart. But it is much less likely that my rulings have any impact at all, except to give enforceable orders, when they are delivered remotely. I can’t look the litigants or counsel “in the eye” and I can’t assess their “whole body” reaction when I am looking at them on the screen. Guidance is a part of my job — a part of my role in the performance — particularly if I was sitting in a collaborative court. We don’t have the training or the technological resources needed to encourage and cajole better behavior from litigants through remote transmission.
Remote hearings are likely here to stay. These hearings have improved access to the courts for many people, have saved attorneys and clients wasted time, and therefore fees. For certain hearings, the online platform works. But a person’s “day in court” should not become a person’s “day in a virtual hearing.” Much is lost in our justice system when evidentiary hearings and trials are not conducted in a courtroom. Just as a theater performer needs the audience to create her art, a judge needs the presence of people in-person before her, with all their imperfections, to really deliver justice.