By Emma Coreno
I have wanted to be a litigation lawyer for as long as I can remember. I had imagined for years who my first client would be and what my first hearing or trial would look like. Was I going to feel at home in the courtroom, or would I be terrified? Would the judge and opposing counsel take me seriously? Would the client feel comfortable having a young and inexperienced student attorney represent them? I was excited for the day that I would finally have the answers to all these questions: the day that I would stand in a courtroom with my client seated next to me. At that time, little did I know that my first hearing would be entirely different than anything I had ever imagined. I already knew attorney-client relationships contained fraught power dynamics due to systemic and institutional flaws, but I was not prepared to see these relationships deteriorate so much in this new age of Zoom, to the point where I am no longer certain if there is such thing as effective assistance of counsel in a COVID world.
In February 2020, I enrolled in the Northeastern University Domestic Violence clinic, in the hopes of being able to represent clients in restraining order hearings in district courts across the Commonwealth. After a period of intense training, at the beginning of March, I was ready to meet my first client. I was assigned to represent her at a probable cause hearing in front of a clerk in Roxbury District Court. We spoke over the phone several times and scheduled time to meet one hour before the hearing in front of the courthouse so that we could meet in person and establish a rapport prior to the hearing. The hearing was set for March 17, 2020. At the time, there was absolutely nothing special about that day – it was just a regular Tuesday. Little did I know, everything was about to change.
On March 10, 2020, Governor Baker declared a state of emergency in Massachusetts to curb the spread of COVID-19. On March 13, Governor Baker ordered closed all trial courts on Monday, March 16 and Tuesday, March 17. That was the date of my hearing – what was I going to do? Or, more importantly, what was my client going to do? The court closure was later extended, for the first of many times, for sixty more days. I will remember this week for the rest of my life. It is the week I became an increasingly panicked law student, coupled with a scared granddaughter of a man at high risk, mixed with an inexperienced attorney that had to, along with my client, learn about the pandemic while trying to stay safe. While I struggled to wear many of these different hats, this is the week where I also understood that, as attorneys, we have to be there for our clients no matter how tough life gets. Therefore, after a few days of turmoil, when I had to fly back home to Europe because we were asked to leave campus, I downloaded Zoom, and I was ready to get to work on restraining order hearings.
Restraining order hearings are how victims of abuse seek a protective order that assists them in stopping abuse by their respective abuser, pursuant to Massachusetts General Laws, Chapter 209A. These orders can be obtained in any district, superior, or probate and family court in the Commonwealth. To apply for a restraining order, the victim will need to provide the court with an affidavit describing the facts of the incidents of abuse. The victim will need to show the court that the person physically harmed them or that they have good reason to believe that the person will harm them in the near future. The restraining order process has two parts. First, the court will ask the victim to appear for an ex-parte hearing, often on the same day as when the affidavit is submitted. Then, ten days later, after summoning the alleged perpetrator, the court will hold an evidentiary hearing where the victim will have to prove their allegations by a preponderance of the evidence. These hearings are often incredibly emotional as victims have to testify to and be subject to scrutiny on the most intimate and personal moments of their life. It can also be particularly triggering to have to share a room while they testify with the very person that subjected them to the abuse. If they are successful, the court will order the abuser to stop and refrain from abuse, have no contact with the victim, vacate the shared household, and surrender all firearms, for up to one year.
Over my three months in the clinic, I had the opportunity to work remotely with six different clients. Each representation experience came with its own set of obstacles. Safe to say that my first ever hearing was completely different than what I had spent years imagining. I had to conduct a restraining order hearing direct examination wholly on the phone, with no video. This meant I was not able to see the judge, not able to see opposing counsel, and most importantly, not able to see and connect with my client. Despite the sensitive nature of the hearings, and the negative emotions they could conjure up due to the remote environment, I could not give her a calming look during cross-examination, and she could not feel a supportive presence. During domestic violence hearings, clients often want to know that their lawyer is listening to them, believes them, and supports them, since it often feels like everyone else in the courtroom is trying to discredit the victim’s story. Trauma-informed lawyering is a complex concept to implement when the physical presence element is lacking. At in-person proceedings, the parties sit next to their attorney, close enough to whisper questions and raise concerns. We could not do that in this format. The client had to find a different phone to text me on while she was using her phone to call the court. This presented numerous challenges not limited to access to technology, having to do several tasks at once, and again, not being able to rely on social cues. During the hearing, the attorneys and judges would speak over each other, creating a lot of confusion. For those forty-five minutes, I kept asking myself: who is this really serving, and is this what due process is supposed to look like?
In another client experience, I was tasked with writing an appeal. I had to assemble the trial court record and file it with the Appeals Court. While this seemed like an easy and mundane task pre-COVID, it was everything but in this new Zoom world. The trial court was closed, so no one in the clerk’s office was available to scan copies of the file. We had to wait several weeks until Governor Baker allowed minimal resumption of court duties. At that point, the clerk’s office still refused to scan us the copies, even though we had a quickly approaching deadline, and we could not get started with the appellate process without the brief. Prior to March 2020, it would have taken me twenty minutes to go to the courthouse and copy the files. However, in the age of Zoom, it is now February 2021, and the clerk still has not scanned the files, even though the public is still not allowed physically into the courtroom to pick them up. I imagine this is a problem that is common across courthouses and even beyond restraining order appeals. So I ask again: who is this serving, and is this what due process looks like?
Last, but not least, the biggest challenge of all is that at no point during this representation did my clients get to see me, and I never got to see them. Having never met, we were unable to fully establish the relationship of trust that I had imagined we would have had in a pre-COVID world in which I would have met them several times in person before court to prepare for their hearings. But these clients did not have access to Zoom, only their phones, so seeing each other was not a possibility, especially because I was in Europe on a seven-hour time difference. This made the attorney-client dynamic even harder to navigate. In a pre-COVID world, the dynamic was already one fraught with power imbalances with its own challenges, and in the age of Zoom, these imbalances are exacerbated as clients are almost forced to put all their trust into a person who they have never met and are not able to meet. In a non-legal context, does it not take you a few meetings with someone, and several conversations, before you are able to trust them and feel comfortable sharing intimate aspects of your personal life? Yet here, in the age of Zoom, domestic violence victims and criminal defendants are forced to share their trauma and very personal details to complete strangers that were either assigned to them by a court or legal aid organization.
In fact, relationships were harder to navigate, especially from the client’s perspective. I assume that they felt that their attorney was not easily accessible, and they probably felt even more alienated from the legal system as a whole. I remember when a few days after a hearing, a client called and told me a close family member of hers had passed from COVID-19. I did not know what to do. Pre-COVID, I would have held her hand while she cried and sent flowers to her house. But in this Zoom world, all I could be was a somewhat unfamiliar faraway voice on the phone while I listened to her cry.
Many experts that have discussed Zoom as a tool in the legal world have focused on what professional responsibility and confidentiality look like in this new remote world. However, what my first few experiences as a student attorney have taught me is that a critical issue is what effective assistance of counsel looks like over Zoom. In this new virtual world, the already existing issues with attorney-client power dynamics rapidly deteriorate, so much so that clients, particularly clients of color, are institutionally and systemically prevented from exercising their constitutional rights. Pursuant to the Sixth Amendment, defendants have the right to be represented by a competent attorney during critical phases of criminal proceedings. Although domestic violence cases are civil, the attorney-client relationship issues I experienced in the clinic closely mirror attorney-client relationship issues with criminal defendants since, in both contexts, the lawyer works directly with the client to address the client’s individual needs. But how effective can that representation be if the attorney and client aren’t in the same location? If they cannot communicate privately? Cannot enter physical evidence? Cannot successfully cross-examine a witness as it is nearly impossible to assess the credibility of testimony by observing facial reactions and body language over Zoom?
Even in the rare instances in which attorneys and defendants can appear in person, they still need to practice social distancing, thus limiting their ability to communicate privately. Additionally, attorneys may potentially be concerned about visiting jails, given that these are COVID-19 hot spots. In this new remote world, attorneys may feel pressure to sacrifice their health and safety in the name of professionalism. Is this fair? What happens if attorneys decide to err on the safe side – will defendants be deprived of effective assistance of counsel?
While I have never done an in-person hearing, it is evident that there is something about being physically present in the courtroom, with your client sitting next to you, that simply cannot be replicated and replaced with Zoom. It can be said that virtual hearings have somewhat increased access to justice and have allowed defendants to continue their cases even when everything else seems to be halted. However, “[t]he visual environment of a courtroom is a silent player in every court proceeding.” The somber décor, the serious air, the silent halls, and the ominous courtroom atmosphere reflect the gravity of each court proceeding; clients’ lives are at stake, especially in domestic violence cases and criminal trials. Over Zoom, the gravity and importance of each court proceeding are lost in a world of digitized backgrounds and audio and technology hiccups. There is no courtroom solemnity in the virtual age.
Now, in February 2021, it does not appear that this pandemic will be over anytime soon. While the vaccine’s shining light is providing the community with some much needed optimism, we are still a long way from returning to the courtroom. Jury trials have yet to restart in most courts in the Commonwealth. Only nine courthouses have been deemed safe for jury trials based on their ventilation and social distancing capacity. Thus far, only five jury trials have been conducted since the pandemic began. Even without the resumption of jury trials, most trial courts, which are generally still closed to the public, are needing to close for disinfection at least a few times a month. Courts have yet to address, or resolve, the constitutional tensions created by Zoom proceedings, and it is unlikely that they will do so anytime soon, given that Zoom is currently the backbone of the justice system. However, it is clear that there is a daunting juxtaposition of rights at play here during the age of Zoom. It is important for the justice system to respond in a way that places litigation parties at the forefront. COVID-19 is already causing a relaxation of Sixth Amendment rights, and it could potentially create tension with other rights in the future.
Courts have obviously had a good reason to hold off on jury trials and restart them slowly with more health and safety precautions. But for how long can that continue without further violating defendants’ rights? A pending Massachusetts case, Vazquez Diaz v. Commonwealth, explicitly deals with these questions. However, given that these tensions are even further exacerbating existing racial disparities and power dynamics within the justice system, players in the system must work to find a solution. A line must be drawn before the age of Zoom turns into a slippery slope used by the justice system to justify stripping defendants of their constitutional rights. At this point, I will call on you to be mindful of clients’ rights and keeping them at the forefront of reopening plans. As attorneys, we need to look beyond our privilege and understand how the age of Zoom is affecting our clients’ wellbeing and their constitutional rights. Yes, public safety is imperative, but so is the integrity of a client’s Sixth Amendment rights.
Emma Coreno is a third-year student at Northeastern University School of Law. She is an international student, originally from Switzerland, and has lived most of her life in Singapore. Emma graduated summa cum laude from Northeastern University in 2019 with a B.S. in Criminal Justice. Emma is passionate about criminal defendant’s rights and immigrant’s rights. She hopes to pursue a career in criminal litigation. At Northeastern, Emma is a member of the Women’s Law Caucus and Criminal Law Project. She is also an Articles Editor on the Northeastern University Law Review.