COURTS AND TECHNOLOGY: Greater embrace of innovation proves pandemic hasn’t been all bad

By Attorney Gregg Herman
April 30, 2021

My dear late mother used to say: It takes an awfully ill wind not to blow some good.

The ill wind which is the subject of the column is the pandemic. The “some good” is the additional use of technologies by the courts.

On Wednesday, the Wisconsin Supreme Court plans to conduct a public hearing on Rule Petition 20-09. That petition, filed in December by Judge Randy Koschnick, director of state courts, seeks to amend a number of Supreme Court rules and Wisconsin statutes pertaining to the use of videoconferencing technology. If there ever was a no-brainer for a change in law, this is it. In fact, it’s amazing (if not embarrassing) that it required a pandemic to nudge the court system into the 21st Century.

Before the pandemic, some counties allowed telephone pretrials while others required them in person. The inefficiency of in-person pretrials in certain cases can be substantial.

There is the need to drive to court, find parking, go through security and wait for a court to be open. Not infrequently, actual pretrials consist of ten minutes of speaking privately with the judge to simply get a new date down the road.

The use of Zoom technology during the pandemic has eliminated much of this inefficiency. There is no driving and no parking. Instead of sitting in court waiting while the court conducts other business (or whatever they are doing), lawyers can get some other work done while waiting to be virtually joined. And this does not even account for the savings that occur when both clients have to take off of work or find (and pay for) day care for the same 10 minute “proceeding”.

Of course, many judges have come to the bench from public practice and therefore have little experience with explaining to a client a bill for unproductive time. Others seem to have simply forgotten. Let’s hope the Supreme Court will understand the unnecessary costs involved with no corresponding benefit.

These rules, if adopted, will not be superfluous. In fact, I have already received notice from a court that hearings will be in-person starting in April, and I have to appear for a matter which should take ten minutes (or less) and is totally uncontested.

Therefore, rather spending than a few minutes on Zoom or by telephone to confirm an agreement, the parties will have to incur costs, inconvenience and lost work time for no apparent reason. Perhaps the new rules should not be permissive.

Ideally, trial courts should be ordered to conduct proceedings in the most efficient manner. Well, that’s probably not going to happen, so let’s hope the rules will at least provide trial court with permission to operate efficiently and that they exercise their discretion appropriately.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.