Virtual Proceedings Pose Challenges to Judicial Fairness

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GRASSROOTS ACTIVISTS WARN OF DANGERS OF VIRTUAL PROCEEDINGS IN NEW INTERMEDIATE COURT

One of the most powerful courts in the state could convene virtually, posing serious challenges to judicial fairness.

CHARLESTON — Grassroots activists are calling on Gov. Jim Justice and the state Supreme Court to take caution in the use of virtual proceedings in West Virginia’s new appeals court. If not handled properly, remote video proceedings can cause serious damage to litigants’ rights, making it impossible to guarantee West Virginians a fair day in court.

West Virginia’s new, powerful intermediate appellate court is set to begin operations in July 2022, but it’s still not clear who will be staffing it or how the court itself will operate. In May, state Supreme Court Chief Justice Evan Jenkins announced his intention of making the court entirely virtual, without offering any information on what the court would do to mitigate the potential harms of ending in-person proceedings.

“Study after study has shown that, unless proper safeguards are taken, using remote technology in the courtroom can lead to disproportionately bad outcomes for litigants,” says Julie Archer, Coordinator for WV Citizens for Clean Elections. “A courtroom is supposed to be a place of fairness for everyone — but virtual proceedings could be tipping the scales of justice against everyday West Virginians.”

Chief Justice Jenkins offered “convenience” as the sole reason for eschewing in-person proceedings in the new court, which would oversee appeals from circuit courts as well as workers’ compensation claims. But without proper care, convenience for convenience’s sake can become a recipe for disaster.

Virtual-only proceedings have a controversial reputation. Several studies have shown that these kinds of proceedings can lead to a disconnect between litigant and judge, leading to worse outcomes than usual for defendants. They can also cause a disconnect between attorneys and their clients, offering them no means of private communication during virtual hearings. West Virginia courts have now returned to in-person proceedings as the state has managed to get a better hold on the pandemic. So, why would this new powerful appellate court be an exception to the reopening?

“Remote video technology has been a critical tool in states like West Virginia during the pandemic and could very well continue to be useful, if implemented correctly,” Archer says. “Chief Justice Jenkins and his colleagues need to be aware of the very serious risk posed by a virtual-only court. Who gets left out in such a decision? Who loses full access to fair and impartial justice?”

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