The COVID-19 pandemic abruptly ushered in a new age of technology to the legal system, including the increased use of remote hearings. Remote hearings offer survivors of violence a new tool for accessing the justice system.
Many survivors of domestic abuse, sexual assault, and human trafficking prefer remote hearings over in-person hearings for safety and logistical reasons. The option of attending remotely can remove practical barriers to in-person events in the courtroom such as not having to be in the same courtroom as the abuser, not having to plan how to safely arrive and enter the courthouse, not having to travel to the courthouse, not having to take as much time off work, and not having to secure childcare for as long. Remote hearings also have the potential to make representation and pro bono services more accessible to survivors in rural communities with few attorneys.1
Attorneys and court staff can make remote hearings a smooth and safe process for survivors if they consider the survivor as a whole person and plan ahead. (See Figure 1: Remote Justice for Survivors)
Practical Tips for Attorneys
As with any change, remote hearings present a new set of challenges for survivors and attorneys. However, to the benefit of survivors, attorneys can overcome the challenges by following these tips.
Prepare Ahead of Time
Discuss with your client how they will be appearing.
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If you will not be in the same location as your client for the remote appearance, help them to download Zoom on their smartphone, computer, or tablet.
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Practice a Zoom call with your client and go over the different features of the application – including switching from speaker to gallery view. Practice muting and unmuting with your client. Explain when to do this.
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Make sure your client knows how they will connect and that your client has access to stable internet or telephone service in as private a location as possible.
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If they do not have stable phone or internet service, find out if your client could appear from a local domestic violence or sexual assault program’s physical site.2
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Make sure your client is appearing from a safe and quiet location.
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If your client does not want their abuser to know where they are during the hearing, teach your client to use the fake background function or just turn off the camera.
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If there is background noise, encourage your client to use headphones with a microphone.
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If your client will appear by phone, make sure they call from a number that they are not trying to keep private from the abuser.
Treat Remote Hearings Like In-person Hearings
Your client needs to treat remote hearings like in-person hearings.
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Would they show up to court with their children or in their pajamas? No!
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If your client can get childcare for the duration of the hearing (even if it is a very short hearing) they should do so. If they cannot, tell them to make sure their children will not wander into the hearing.
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Tell your client that they will likely have to take some time off work – even if they just go to their car.
Attorneys also should treat Zoom hearings like in-person hearings.
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Prepare your client for Zoom hearings the same way you would prepare them for in-person hearings.
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Go over how they will listen to and answer questions.
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Check your local court rules.
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Discuss how evidence will be received and reviewed.
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Practice this with your client over Zoom.
Embrace the Remoteness
A survivor client may prefer not having to share physical or virtual space with their abuser. A client can even block the perpetrator’s picture on the screen (putting a sticky note over their face in gallery view is especially effective).
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A client can appear from a safe place on their own terms.
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Take advantage of all the technology you can – either within Zoom or externally.
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You can ask the court to put you in a breakout room with your client if you need to discuss something and to put all parties in a waiting room until the hearing begins.
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You and your client can either use the private chat function in Zoom or text or email from another platform during the hearing.
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If your client must call in from a private phone number, ensure ahead of time that the court is aware of its ability to change a participant’s phone number display to protect privacy.3
Beware of Pitfalls
Some of the pitfalls to watch include the following.
Working With an Interpreter:
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Appearing remotely with an interpreter can be very hard.
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Appearing with two interpreters is even harder.
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Zoom does have a simultaneous interpreting feature, but an interpreter will not always be able to interpret simultaneously with a speaker. Find out ahead of time whether the interpreting will be consecutive or simultaneous, and prepare your client accordingly.
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Advise your client to speak slowly and say one idea at a time so the interpreter has time to interpret.
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Cases that involve survivors often involve sensitive topics. Talk to your client ahead of time about any potential conflicts of interest with the possible interpreter pool, especially within a small community that is tight knit across the state. Be prepared for the hearing to take longer than anticipated.
Generally: Make sure your client knows what to do if internet or phone service is interrupted. Have them contact you immediately or try to reconnect.
Don’t panic. If something goes wrong, try to fix it as best you can. This is a learning experience for everyone – even the courts.
What Still Needs Work
Kristin M. Slonski, Southern Illinois summa cum laude 2007, is the Litigation Director for Judicare, Wausau. In 2019, she was nominated for the Outstanding Mentor Award through the State Bar of Wisconsin Young Lawyer’s Division. She formerly was a litigation attorney at Daubert Law Firm LLC, Wausau. Before entering law school, she served as an Arabic translator in the United States Army, Active Duty.
Megan L. Sprecher, St. Thomas 2007, is the Immigration and Poverty Law Attorney at End Domestic Abuse Wisconsin, Madison. She previously was a senior attorney for The Legal Aid Society of Cleveland for several years.
Nadya E. Rosen, City University of New York 2004, is a Managing Attorney at Disability Rights Wisconsin, Madison. She runs the Victim Advocacy Program, a state-wide project that provides direct advocacy to survivors of crime with disabilities and promotes systemic change in how victim response systems work with survivors with disabilities. She is licensed to practice law in New York and Wisconsin.
Rachel E. Sattler, U.W. 2008, is an attorney at Legal Action of Wisconsin Inc., Madison, and concentrates in privacy and crime victim rights law and coordinates the Volunteer Lawyer Project. She previously was a sensitive crimes prosecutor for 10 years. She is also the co-founder of Dane County Multi Agency Center Inc., a local nonprofit organization that streamlines survivor access to support.
Robert Bebb Held, U.W. 2013, is the Family Law Priority Coordinator at Legal Action of Wisconsin Inc. and a staff attorney in the Racine office. He represents survivors of domestic and family violence and sexual assault in Racine, Kenosha, and Walworth counties.
A wholesale embrace of Zoom or other remote hearing technology for survivors still faces some hurdles. Broadly speaking, there is a need for greater training and for greater access to technology.
Training Needs:
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Clerks should be aware of and communicate to attorneys and self-represented litigants the availability of features such as breakout rooms, waiting rooms, and phone number display changes and how to request them ahead of time. Attorneys and clerks should openly communicate and cross-train on the use of remote technologies.
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Instructional videos like those available on e-filing should be created for litigants, especially self-represented litigants. Resources should be closed captioned and available in multiple languages.
Technology:
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Disparities in access to and proficiency with technology need to be considered and addressed.
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A smartphone or tablet would have the necessary hardware, but clients may not have enough data minutes or a stable enough connection to make a remote appearance practical.
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Some locations where low-income people typically access computers (for example, libraries) are not private settings or are closed or have limited access during the pandemic.
- Victims’ right to privacy must be balanced with their right to be heard. Currently, criminal courts require victims and their advocates to choose between the following:
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Attending via Zoom and requiring them to identify themselves to the court and parties. This allows them the technological option of participating if an issue is raised on which they wish to be heard but affords no opportunity to observe anonymously as they could if sitting in the gallery of a courtroom.
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Observing via YouTube. This allows them to observe a hearing anonymously but fails to provide a mechanism for victims or their advocates to participate if an issue is raised on which they wish to be heard.
Possible Solutions:
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Attorneys, advocates, courts, and community partners might be able to provide clients with the WiFi or wireless hotspots and private settings (such as an enclosed kiosk or mobile technology backpack) necessary to enable clients to take part in remote hearings. The legal system must explore the logistics and obstacles of funding and distributing the wireless hotspots.
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Directions for calling in for a Zoom appearance can contain multiple numbers based on various geographic locations, which might be confusing. Courts could simplify by providing only the number that a Wisconsin resident would dial.
Conclusion
As the legal system works out the kinks with remote hearings, it must keep survivors and their legal rights at the forefront. Making remote hearings safe and secure for survivors will increase the likelihood that survivors feel comfortable accessing the legal system to claim the legal protections for which they qualify and that they need to be safe and move forward.
For more information about survivors’ and victims’ rights, see “Marsy’s Law: Changes for Crime Victims?” in the September 2020 Wisconsin Lawyer.
Meet Our Contributors
What is your greatest professional accomplishment to date?
As a female litigator in criminal law, I spent years trying to contort myself into a version of a lawyer that could effectively fit into the narrow norms of an entrenched system that was not designed to encourage or appreciate the participation of women. I eventually made the conscientious decision to reject the broadly accepted notion that, if I wanted to become a respected leader in the criminal justice system, I must conform to it by dimming my very self, dampening the parts of me that make me most equipped to do my job well, to innovate the work. My greatest professional accomplishment has been discovering the power of my own voice, instincts, intelligence, and values – in order to conform the system, rather than myself.
Rachel E. Sattler, Legal Action of Wisconsin Inc., Madison.
What is your most memorable trip?
My most memorable trip was to Grand Canyon National Park. My partner and I hiked down the North Kaibab Trail, camped in the canyon for a few days, and then hiked up the South Kaibab Trail. It was incredibly beautiful down at the bottom of the canyon experiencing a world that I had never seen before. Camping along the river with a view from below of the canyon walls was breathtaking. This was my first backpacking trip, and while it was both mentally and physically exhausting, it was completely worth it!
Nadya E. Rosen, Disability Rights Wisconsin, Madison.
What was your funniest or oddest experience in a legal context?
One interesting experience I had when I was an attorney with Legal Aid was having three different unrelated clients with the same first and last name at the same time. It was very confusing and a bit of a comedy of errors! Luckily, they all had different middle names.
Megan L. Sprecher, End Domestic Abuse Wisconsin, Madison.
What would you do with a time machine?
If I had a time machine, I would go back in time to the Mesozoic era to see the dinosaurs. Dinosaurs have fascinated me since I was a little kid. The scale and oddness of these animals makes them so interesting to children. But, as an adult, I have been captivated by the strangeness of the world that they inhabited.
The landscape, the plants, and the other animals that lived alongside the dinosaurs were just as interesting and strange as the dinosaurs themselves. Moreover, the dinosaurs inhabited a time that is so distant from the present that it truly boggles the mind. To go that far back in time to see Earth as it was during the age of the dinosaurs would be to look upon a world that is almost completely alien. It’s an Earth that isn’t our Earth. And that – I think – is what makes the dinosaurs so intriguing.
Robert Bebb Held, Legal Action of Wisconsin Inc., Racine.
How did you find your way to your current position?
I moved to Wausau from Illinois in 2009 and began working as a litigator for business-focused law firms. I did a lot of landlord-tenant work on behalf of landlords, foreclosure work on behalf of lenders, and consumer work on behalf of creditors.
One of the first attorneys I met in Wausau was Beth Ann Richlen, now executive director of Wisconsin Judicare. Over the years she and I saw a lot of each other from across the “v.” I was always impressed with her professionalism and passionate advocacy. So, when I was looking to make a change a couple of years ago, I reached out to Beth Ann. Judicare seemed like a great place to work, both because the people there were all so friendly and because the work really has a positive effect on the community we live in. Fortunately, Judicare had an opening that fit perfectly into what I was looking for. I feel very fortunate to be able to work with such great people and make a real difference in people’s lives.
Kristin M. Slonski, Judicare, Wausau.
Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email klester@wisbar.org. Check out our writing and submission guidelines.
Endnotes
1 Jeffery Brown, Shifting Gears: Pro Bono in a Pandemic (State Bar of Wisconsin, InsideTrack, July 15, 2020).
2 End Domestic Abuse Wisconsin, Get Help Map, (last visited Aug. 10, 2020).
3 Options for Victim Participation in Zoom-Based Court Proceedings, Wisconsin Court System Office of Court Operations, April 2020.
