Video in Courts in United States

Videotape in Courts

Videoconferencing

Videoconferencing is the process by which the court and the parties at
separate locations appear and participate in hearings by means of video
technology. This part describes how some courts are using videoconferencing
for trials and hearings, identifies the advantages and disadvantages
of videoconferencing, discusses the technological and other
requirements for its use, and describes certain other issues that arise with
its use.

At this time, courts are using videoconferencing far less than they are
using teleconferencing. Nevertheless, in some locations videoconferencing
is used extensively. Videoconferencing requires more resources than
teleconferencing, both to set up the basic infrastructure and to maintain
and use the technology, but the ability to transmit live visual images can
be useful.

The main consideration for using videoconferencing appears to be
geographical distance in its various forms: distance measured in miles
between sites or distance measured in time needed to travel. Accordingly,
many of the courts that use videoconferencing extensively are in geographically
large but sparsely populated districts, such as Montana, the
Eastern District of Washington, and New Mexico.

However, bankruptcy courts in more urban areas also make significant
use of the technology. The judges in the District of Delaware, for
example, use videoconferencing for a variety of purposes, including, for
example, to conduct hearings in the Virgin Islands when travel is not feasible
and to hold joint hearings with the Canadian Bankruptcy Court. In
special circumstances, the Delaware judges also will permit a witness or
attorney who is unable to travel to participate by videoconference. And
because attendees at hearings in some of the district’s larger cases may
not fit in one courtroom, the district may also use videoconferencing to
broadcast the proceedings in one courtroom to an overflow courtroom.

Videoconferencing technology

In recent years, the costs associated with videoconferencing technology
have decreased, and the quality of the technology has improved.
About ten years ago, videoconferencing in the federal courts was predominately
accomplished using dedicated ISDN lines (Integrated Services Digital Network lines). Dedicated ISDN lines are essentially “grouped or ganged” telephone lines, the number of which affects the
speed with which audio and video can be transmitted. The use of such
lines entails a monthly cost per line, and typically at least three lines at
each location are needed to provide sufficient speed and bandwidth. If a
district wanted to have videoconference capabilities among four court locations,
for example, the district would pay a monthly charge for twelve
lines. In addition, a per-minute usage fee is associated with each videoconference.
Direct point-to-point connections require compatibility of
systems, even as to the speed of the ISDN lines, for smooth transmission
of audio and video. See below for a discussion of a “bridge.” T1 or T3
lines are similar in concept to ISDN lines but typically provide greater
functionality.

About eight years ago, some courts began using public IP (Internet
Protocol) rather than dedicated ISDN lines for videoconferencing, which
saved costs because the use of public IP connections eliminated the perline
monthly cost and per-minute usage fee associated with the ISDN
lines. At the same time, a cost, although more limited, was associated
with the public IP connections.

Then about five years ago, the capabilities of the Judiciary’s DCN
were enhanced so that videoconferencing could be accomplished using
DCN IP connections, thus reducing the associated costs even more. The
speed of IP connections, whether public or private (DCN), is much
greater per dollar cost. Currently, some courts are using ISDN lines, others
are using public IP connections, and others are using DCN IP connections.

Technology within the courtroom itself is either a fixed or mobile
videoconferencing system that uses a coder-decoder (CODEC). A mobile
system is generally combined with one camera, and a fixed system, typically,
with three cameras. The CODEC combines all video signals and
audio from the courtroom and sends them to the remote side of the call.
The CODEC also receives video and audio from the remote side, and
transmits the signal for distribution through the courtroom video and
audio systems. The Courtroom Technology Guidelines currently provide
for a mobile videoconferencing system, and local courts are able to procure a fixed videoconferencing system if it is deemed to meet local requirements.

A “bridge” is necessary if multiple systems are to be connected, or if
the systems’ protocols are different—for example, one system uses ISDN
lines and the other uses Internet Protocol—or if the Internet Protocol
connections being used are public (system 1) and private (system 2).
Thus, an additional cost of videoconferencing can be the cost of a video
bridge or the use of a third-party bridging service.

The AO has now implemented a video bridging system that is available
at no cost to the individual courts (National Video Teleconferencing
Service, or NVTCS). That is, courts can use the NVTCS in lieu of purchasing
their own video bridge or using an outside provider. The NVTCS
supports multiple IP-based endpoints across the DCN and over the Internet,
as well as any standards-based CODEC. Court CODECs can register
to the national system, thereby eliminating the need for courts to
maintain local ISDN circuits.

Video Teleconferencing (VTC) Guest Services is an extension of the
NVTCS. The implementation of VTC Guest Services provides NVTCS
courts with the ability to connect external participants to their videoconferences
via a web browser on the participant’s computer or an application
on the participant’s mobile device. The VTC Guest Services uses
the software Cisco® Jabber Guest™ to allow external participants to
connect to the judiciary’s video bridging system.

Therefore, courts currently can minimize costs by using DCN IP (Internet
Protocol) and the video bridging system (NVTS) available from
the AO. However, equipping the courtrooms with the necessary audio
and visual systems still poses significant costs.
The technology used for videoconferencing will continue to develop,
and indications are that this development will continue to lower the
technology’s cost and reduce the difficulty of its use.

How bankruptcy courts have implemented videoconferencing

Courts use videoconferencing in different ways and for different reasons.
The following examples are illustrative.

District of Montana

The U.S. Bankruptcy Court for the District of Montana uses videoconferencing
extensively. The court first conducted video hearings in 1998
when winter weather made traveling through the geographically vast district
hazardous. Within a few years, the court was using videoconferencing
routinely for a wide range of matters, including uncontested matters,
contested matters, and trials in adversary proceedings. The increased
reliance on videoconferencing largely supplanted teleconferencing,
which Montana now typically uses only for preliminary hearings on
motions to modify the stay, pretrial conferences, and reaffirmations, and
for people who merely want to listen in to the proceedings.

The judges report that their experience with videoconferencing has
been very positive. Because videoconferencing has been used so extensively
for so long, Montana attorneys are comfortable with and appreciate
its use; it broadens their practice area without additional expense to
the client.

Logistically, the Montana court takes a flexible approach to videoconferencing.
The judge may be in the courtroom where the hearing is
scheduled or may appear remotely from another court location. Attorneys,
parties, and witnesses may appear in person in the court location
where a hearing is scheduled or may appear remotely from a non-court
videoconferencing facility. The court does not require that the attorney
and client be in the same place and will call a recess for them to confer by
phone, if necessary.

Originally, attorneys appearing remotely did so from another courtroom
in the District of Montana or another district. However, as caseloads
grew it became increasingly difficult for litigants to find an available
courtroom, and the court grew concerned about any appearance of
preferring some attorneys and parties over others, most notably in-state
attorneys and parties over those from out-of-state. The court thus opted
to require attorneys to appear from private or third-party videoconferencing
facilities. The court provides an alphabetical list of frequently used
videoconference providers.

The use of videoconferencing has dramatically reduced the travel required
of chambers and court staff. Because audio from hearings in all
court locations is transmitted to Butte, the law clerk and the courtroom
deputy almost always stay in Butte, and the court record is digitally recorded
in Butte for the official record.

District of New Mexico

The District of New Mexico uses videoconferencing to allow judges to
preside remotely from the Albuquerque courthouse for hearings in four
other locations in the state (Roswell, Farmington, Las Cruces, and Santa
Fe). The court selected these locations because the U.S. trustee holds section
341 meetings there, which provides convenience and cost savings to
the attorneys, debtors, creditors, and trustees. In three of the four locations,
the bankruptcy court uses videoconferencing equipment belonging
to the probation office. In the fourth and most frequently used remote
location (Las Cruces), the bankruptcy court has its own dedicated hearing
room and videoconferencing equipment. The bankruptcy court and
probation office each has its own videoconferencing equipment in Albuquerque.
In contrast to the District of Montana Bankruptcy Court, the
court rarely allows appearances from private locations.

The hearing room in Las Cruces, which is about a 4-hour drive from
Albuquerque, looks like a mini-courtroom with a bench, attorney tables,
and a witness stand. It also has a high-definition videoconferencing system
with three cameras. The room can be used with the judge in attendance
or with the judge appearing remotely, almost always from the Albuquerque
courthouse. For remote hearings, the monitor raises up out of
the bench so that the attorneys and parties are facing the judge who appears
on the monitor. The court has full control over all equipment from
the Albuquerque courthouse. The cameras are preset, but the court can
adjust the camera angle or zoom from Albuquerque. In court locations
other than Las Cruces, the camera is static—neither the court in Albuquerque
nor the remote location can adjust the camera angle or zoom.
Owing to cost and lack of need, the hearing room does not have an evidence
camera, so parties exchange any necessary exhibits ahead of time
by e-mail.

Generally, the court tends to use teleconferencing for scheduling
conferences and videoconferencing for matters involving pro se parties,
evidence, and Chapter 13 issues. The judges will permit witness testimony by videoconferencing, especially from Las Cruces. For significant evidentiary trials and hearings, however, the judge will either travel to the
outlying location or have attorneys and parties come to Albuquerque. In
locations other than Las Cruces, the judges typically use videoconferencing
to handle routine matters in which assessing credibility is not as
critical, such as reaffirmation hearings with pro se debtors. For example,
the judges will schedule pro se debtors who want to reaffirm debt in time
blocks. This allows the judge to explain the basic considerations in reaffirming
debt to all the debtors at the same time and then speak with
them individually about their personal situations.

Other districts

Some courts schedule routine video hearing days and provide connections
between two courtrooms or between a courtroom and an alternate
site. For example, until the loss of state funding for remote non-court
sites, the District of Vermont routinely set certain hearing dates on which
attorneys, represented parties, and pro se parties could appear by videoconference
at four specified non-court sites. They could appear at sites
other than the four court-specified sites by making independent arrangements
and paying the associated cost. Video appearance on these
days was limited to these situations: (1) for observation of, rather than
participation in, the court proceeding; (2) to place on the record a consent
or scheduling agreement; and (3) when the length of combined attorney
argument was not reasonably expected to be more than 15
minutes. It was explicitly not to be used for (1) Chapter 12 and 13 confirmation
hearings; (2) most Chapter 11 confirmation hearings; (3) trials
and evidentiary matters; (4) hearings requiring extensive legal argument;
and (5) hearings for which the court had specified in the hearing notice,
or otherwise, that parties must appear at the court location. It could be
allowed in other circumstances upon order of the court.

Similarly, some judges in the District of Arizona hold routine video
calendars with all court locations, reasoning that video calendars save
money for both the court and counsel, and allow the court to hear more
matters each month. Other judges in the district set matters by videoconference
on request. Videoconferencing systems are available at all
court locations and can interconnect, via ISDN lines, with video systems
external to the court. The court can also accommodate IP-based calls
through a bridging service, typically at the expense of the requesting party.

Some bankruptcy courts separately schedule specific matters to be
heard via videoconference. Some bankruptcy courts use the technology
for bulk dockets, such as a Chapter 13 motion calendar that requires the
participation of a number of people. Still others use videoconferencing in
both ways.

Courts have also used videoconferencing for both non-evidentiary
and evidentiary hearings when the debtor is incarcerated in a correctional
facility. To help reduce the cost and security risk of transporting
inmates to state and federal court proceedings, correctional facilities may
have secure, high-quality, and federal-court-compatible videoconferencing
systems for such hearings, along with knowledgeable staff for managing
the remote side of the proceeding.

Advantages and disadvantages of videoconferencing

As it is with teleconferencing, bridging geographical distances is the most
obvious advantage of videoconferencing. The resulting reduction in travel
time can create significant cost savings for the parties and the courts
while enhancing access to the judicial system. But videoconferencing has
a range of expenses and technical challenges associated with its implementation.
Depending on the court’s needs or requirements, some implementations
are cost-effective while others may be cost prohibitive.

Some judges think the shortcomings of the technology—which may be
intangible—may well outweigh the benefits.

Advantages

In comparison with in-person hearings, videoconferencing can save travel
time for judges, law clerks, deputy clerks of court, and security personnel.
Although videoconferencing reduces travel costs, those travel
costs are paid by the Administrative Office, whereas the cost of installing
and using videoconferencing comes out of the court’s local budget or
may be procured via the Electronic Public Access (EPA) funds provided
annually. Thus, there are competing interests at play for courts evaluating
the use of videoconferencing. With the introduction of the National Video
Teleconferencing Service (NVTCS) and the Video Teleconferencing
(VTC) Guest Services, however, the Administrative Office has taken
measures to absorb some videoconferencing costs that the local courts
have borne in the past.

Saving travel time and expense may be just as important to the parties
as it is to the court. To the extent that videoconferencing reduces the
cost of litigation, it allows more participation in the judicial process by
parties with limited means, another positive outcome.

Videoconferencing also presents certain advantages over teleconferencing.

Videoconferencing allows participants to observe the demeanor
and reactions of the other persons participating in the hearing, a factor
that is a determinant for many attorneys in deciding to attend hearings in
person rather than appear only by telephone. A judge also can more easily
signal that he or she wants to ask a question or stop a discussion. These
advantages make videoconferencing a better method for conducting evidentiary
hearings remotely. Judges disagree, however, about the extent to
which videoconferencing permits adequate witness observation.

Disadvantages

Telephone technology is ubiquitous, system compatible, cheap, and easy
to use. To conduct a telephonic hearing, a judge need only pick up the
phone and use its conference capability to connect with one or more parties,
whether the parties are expecting it or not. And the system works
from almost any location, without installation of new equipment. Comparatively,
video technology is more costly and complex to use.

The Technology Solutions Office of the Administrative Office establishes
the baseline technology guidelines for courtroom audiovisual (AV)
configurations throughout the judiciary. The baseline technology guidelines
provide for videoconferencing in the bankruptcy courts in the form
of portable solutions; whether this meets the needs of the bankruptcy
courts is under debate. Many courts have procured portable units, although
not all make full use of them in their courtroom proceedings.

Monies are dedicated for audiovisual and videoconferencing systems
during new construction projects. Funding for annual maintenance of
the audiovisual and videoconferencing equipment is provided for within
the annual EPA funds and distributed within the courtroom technology
allotments, and it is included in the court’s annual budget. Because of
tight budgets, only a small amount of funding is available to retrofit existing
courthouses. Associated costs include not only the front-end expense of obtaining adequate equipment, but also the continuing expense of maintaining and operating the equipment.

Until recently, videoconferencing presented certain logistical difficulties
in comparison with teleconferencing. Courts have usually required
that the parties participating remotely go to a location where they
can be linked to the court video system. (Of course, in the paradigm of
“appearing in court,” parties are usually required to appear wherever the
judge decides to sit, so parties may not see this as a disadvantage.) This
location might be another court location, a commercial location or the
offices of a law firm large enough to have its own video facility. Now
software that allows parties to appear from their own computer desktops,
laptops, or mobile devices is available, and its use might be appropriate in
some situations, such as those amenable to teleconferencing.

Historically, in comparison with voice transmissions, videoconferencing
required substantial bandwidth. Therefore, the number of locations
at which parties were able to participate in a videoconference
might have been limited when compared with the number of locations
possible for teleconferencing. In addition, the number of remote locations
might have been limited so that all locations could be visible on the
monitors at one time. Newer technologies address these issues and allow
the court to determine the best practices for remote connections and locations.

Operating a videoconferencing program and conducting hearings

Although no two courts implement a videoconferencing program exactly
the same way, districts that use this technology the most share some operational
similarities and requirements.

First, even though some of these courts may conduct most hearings
by videoconference, judges still travel to outlying divisions when appropriate.
This is the case in Montana, where the judge still frequently travels
to outlying divisions, even if someone has not requested an in-person hearing. But the videoconferencing capability allows the judge to travel without law clerks and courtroom deputies because the audio from the
videoconferencing CODEC can be routed to the audiovisual and digital
recording systems in the location where the courtroom deputy and the
law clerk are working. Similarly, in New Mexico, the court regularly
schedules videoconferences to allow judges to appear remotely from the
Albuquerque courthouse for hearings in four other court locations in the
district. However, when a matter so warrants, the parties or the judges
will travel to hold an in-person hearing.

Second, if a bankruptcy court and a district court or other court unit
share the videoconferencing equipment, they must coordinate with each
other to schedule its use. It is important to have a single “video” scheduling
calendar that is shared by all units so that everyone can determine
its availability. For example, in the District of New Mexico, where the
bankruptcy court uses the probation office’s videoconferencing equipment
in three remote locations, the bankruptcy court and the probation
office use an internal calendar to schedule videoconferencing equipment
and space.

Third, the court must determine the locations from which parties
and witnesses may appear. Other court sites within the district are the
simplest potential location, provided they have the requisite equipment.
But in some circumstances, witnesses or parties will be outside the district
and unable to travel. In these situations, judges often seek the use of
out-of-district court facilities near the location of the witness or party.

There are many commercial video facilities, and businesses and law firms
commonly have facilities. In appropriate circumstances the court might
authorize or require a law firm to host a videoconference, and might preside
over that hearing in the law firm’s conference room. The use of private
facilities raises the issue of who pays for the videoconferencing. But
this issue should not stand in the way of the practice; expenses associated
with traveling to the physical courthouse will generally exceed the videoconferencing
costs. Alternatively, the court may allow an administrative
reimbursement under certain circumstances.

Fourth, the judge needs to ensure that everyone can see him or her
and the other parties. This may require that prior to the hearing the judge
and IT staff work on the positioning of the cameras, both where the judge
will preside and where any witnesses or parties may appear, to the extent
the court has control. Ideally, the system should have sufficient camera capacity so that the judge can view not only the witness and the attorney, but also counsel tables and any observers.

Considerations for local rules and procedures for videoconferencing

Some courts have local rules, forms, and established procedures for videoconferencing,
and others do not. This section discusses some considerations for local rules and procedures for videoconferences.

Does the court need a local rule?

Although the short answer to the question “Does the court need a local
rule?” is “no,” the longer answer is that rules and procedures have proven
helpful in those jurisdictions that frequently use videoconferencing. Many districts have local rules for telephonic hearings but far fewer districts have local rules or district-wide procedures for
video hearings. Some of those rules and procedures are comprehensive.

Rhode Island Local Bankruptcy Rule 9074-1, for example, sets forth information
about making a request for a video hearing, handling of written
submissions and exhibits, swearing in witnesses, minimum technological
and practical requirements, and other matters. See also the Southern
District of Alabama Interim Video Teleconference Bankruptcy Rule,
and the District of Montana Policy for Remote Appearance at a Bankruptcy
Hearing and Trial. Other districts have a local rule that is supplemented
by individual judges’ procedures. See, for example, the Eastern
District of Pennsylvania Local Bankruptcy Rule 9074-1 and judgespecific
procedures that vary on matters such as the presentation of evidence
and taking of testimony.

In some districts, bankruptcy judges individually set out policies in
chambers procedures or orders. Standing orders in the Northern District
of Mississippi and in the Southern District of Mississippi provide an interesting
example. These orders enable one judge to hold video hearings
in both the Northern and Southern Districts of Mississippi and another
judge to hold video hearings in outlying locations in the Southern District
of Mississippi. The orders further provide that the court may set for
hearing by videoconference any matter in a bankruptcy case, including
contested matters and adversary proceedings, and they include provisions
regarding the exchange and introduction of exhibits and the taking
of witness testimony.

Bases for conducting video hearings

Local rules and procedures commonly allow for video hearings for the
“convenience of the court and the convenience of the parties.” Convenience
is usually measured by the distance from the courthouse where
the judge presides or by the cost of travel, and may take into account not
only counsel and parties but also witnesses. Some rules also reference the
cost associated with the videoconference itself, which may fall to the parties,
particularly when they are using a non-governmental site for the
hearing. (In those jurisdictions, the rules generally specify who is responsible
for certain costs.) The government typically absorbs the cost when
the parties are all at a court site.

Some courts do not conduct video hearings unless there is a specific
request for them. Other courts, such as those in the Districts of Montana,
Wyoming, and New Mexico, schedule videoconferences routinely as part
of managing their caseloads. In fact, because videoconferencing is used
so routinely in Montana, the court has a procedure through which attorneys
and parties may request that the judge appear in person rather than
remotely. The court tries to identify cases that need the judge’s physical
presence because of the nature of case and the attorneys involved, so this
procedure has been used only a few times.

Preparing for a video evidentiary hearing

A key consideration that could be addressed by local rule is how to ensure
that everyone is utilizing the same set of exhibits. This can be accomplished
if the exhibits are part of the case management (CM) record
and CM monitors are available at all the sites. If the court has an evidence
presentation system such that a document or other tangible piece of evidence
can be displayed on a screen and thereby made available to everyone
on evidence monitors, that would also ensure that everyone is considering
the same evidence and provide the judge with control over what
everyone sees. However, the problem with evidence presentation systems
that allow counsel or a witness to control what everyone sees, such as
documents that are on CDs, is precisely that: someone other than the
judge controls what everyone (including the judge) sees, and the judge
cannot page forward or backward within a document while the witness is
testifying. For that reason, a number of the rules require that exhibits be electronically filed or exchanged via e-mail or postal service a certain number of days before the hearing takes place.

The rules or a pretrial order also might specify whether a witness will
be allowed to testify from a remote location.

Potential ramifications of videoconferencing

Some ramifications of videoconferencing, such as saving travel time and
costs, are intentional, but other ramifications may be unintentional and
unexpected. Some interrelated issues judges may want to consider are the
following: (1) integrity of the decision; (2) dignity of the court; (3) equal
treatment of parties and attorneys; and (4) consistency with the local legal
culture.

Integrity of the decision

A judge or the parties might ask if the decision rendered would have been
the same if the hearing had taken place in person rather than on video
(or for that matter by telephone). Do the participants, including the
judge, pay as much attention at a video hearing as they do in the courtroom?
What is the impact of a commercial location and its attendant
background noises and activity? How does videoconferencing affect parties’
acceptance of a court’s decision? What happens when a party learns
of an adverse decision at a place other than the courtroom?

Dignity of the court

How do the parties perceive the judge when he or she is not surrounded
by the furnishings of the courtroom and the other hallmarks of the office?
Courts have long recognized that the bench, the seal, the judicial
robes, and other symbols of the office and the court emphasize the importance
of the proceedings and may lead the participants to be more
truthful. Is some or all of the dignity of the court lost when someone appears
by video (or by telephone)? If a judge is appearing remotely from a
location that is not a courtroom, some of these concerns can be addressed
by setting up what appears to be a judicial bench with the court
seal behind it (e.g., in a conference room) and having the judge wear a
robe.

Equal treatment of parties and attorneys

How does a court draw principled distinctions about who may appear
remotely and who may not? For example, is permission routinely given
to anyone outside a geographic area, or a jurisdiction, and if not, then
how are the distinctions drawn and articulated? What about the firm
with its own video equipment and conferencing facility: will it be permitted
to appear by videoconference upon request? Should a court allow parties who only want to observe the proceedings and not question witnesses, make arguments, and so forth, participate by videoconference?
Will the court activate the videoconference facility at the request of a pro
se party or only for counsel?

Consistency with the local legal culture

How does the use of videoconferencing impact the local bar, and is it
consistent with the local legal culture? How much will or should videoconferencing
replace the judge’s taking the time to travel to other sites
within the district and showing them the attention that a personal visit
represents? If the judge travels to a “remote” site, will videoconferencing
be used to allow parties at the “main” site to appear and thus avoid traveling
to the remote site where the judge will be? Does videoconferencing
support the nationalization of bankruptcy practice?

As is true of every new technology, videoconferencing has advantages
and disadvantages. Courts need to weigh all of the relevant considerations,
no matter how intangible, against the more obvious convenience
and cost savings that result from allowing videoconferencing.

Video in Courts