Ethics and Virtual Litigation: Yes or No?

Virtual litigation is a fairly new concept, and in recent years with the Covid-19 pandemic and its accompanying restrictions forcing people out of courtrooms and public spaces, virtual litigation has become extremely normalized.

However, that produces several issues, and one of them has to do with the ethics of conducting serious legal business via virtual mediums.

Today, we want to dive into what virtual litigation is, how it became as commonplace as it is, the question of ethics in its use, and several other aspects of it that you need to know about to properly navigate the modern legal landscape.

Let’s get started.

What is Virtual Litigation?

Virtual litigation is fairly simple when you take it at face value. It’s simply conducting the courtroom process over virtual means such as smartphones and computers instead of requiring all participants to be physically present in a courtroom.

Any time a courtroom process is conducted via phone, computer, or similar means, virtual litigation is taking place.

When Did Virtual Litigation Become a Thing?

Virtual litigation hasn’t always been around. Obviously, it wasn’t used at all prior to virtual communication being invented, and even after the internet blossomed and became commonplace in most households, it was not concept courts were willing to deal with.

As early as a decade ago, having courtroom proceedings over video chat or using telephone technology to include certain special participants without them physically being there was a concept. However, it was not remotely common, and it was typically used in very unique cases that weren’t overly important.

Virtual litigation became commonplace and considered “normal” in 2020 when the Covid-19 pandemic struck society and restrictions were placed on practically every public gathering. People could not gather in courtrooms due to restrictions and potential health concerns, and a novel solution had to be found to keep the legal world from halting entirely. 

However, it wasn’t just used throughout the pandemic when everything was restricted. Even now, when restrictions are fully removed and the majority of people have moved on from their Covid worries, virtual litigation remains commonplace.

Many types of cases, from divorce hearings and parental rights hearings to lawsuits and even criminal matters, are handled via virtual means.

Why Has Virtual Litigation Remained Popular Even After Covid?

If virtual litigation causes ethical problems, and it was only really popularized for the Covid pandemic, why has it remained so popular, now? Well, there are a couple of reasons for that.

Predominantly, it remains a major facet in litigation because it removes many of the issues participants faced in terms of actually getting to the courtroom.

For many people, getting a court date, for practically any reason, meant taking off from work and losing pay, risking their jobs, missing their obligations such as childcare, and halting their entire life for the litigation in general.  In short, it put most people into a hard spot that often shouldn’t have been necessary. Especially in civil cases or frivolous lawsuits where defending oneself could cause more damage than good. There have also been cases of parents losing custody just because they didn’t have a car and couldn’t afford bus fees, or people losing lawsuits for the same reasons. This put a lot of people at a major disadvantage that simply isn’t positive in a legal situation in a fair and just system.

However, it’s also more flexible. Especially in minor cases where many non-crucial participants can’t warrant traveling or giving up all their personal responsibilities to participate. With virtual litigation, anyone can take a short break in their daily schedule, get on their phone wherever they might be, and participate exactly as they would if they stopped their entire life and revolved their day around being physically present in a courtroom. Anyone who is relevant to the case and willing to participate can do so without making any major sacrifices to their personal lives.

In general, virtual litigation allows participants to participate in the case fully whether they’re disadvantaged or not.

Non-Ethical Issues with Virtual Litigation

We’re going to get to the ethical issues shortly, but there are a couple of issues present with virtual litigation that have nothing to do with ethics.

First, there’s the technology barrier. While the vast majority of individuals have smartphones that meet the bare requirements for video chat functions, not everyone does. Most people especially don’t have professional-grade communications that make it smooth and seamless. This tech disadvantage requires some people to participate from public places such as libraries or even coffee shops; especially when their ability to access Wi-Fi is limited to such places.

Another issue is the skill required to use video chat.

While it’s extremely common for younger individuals to understand technology extremely well, many older individuals still struggle with using phones, computers, and more complex functions of those devices. That can lead to them being unable to participate without help, and it can create productivity issues for the case in general. Imagine a grandma struggling to turn their mic on or accidentally closing out of a video conference repeatedly while figuring out how to use the program associated with the court’s proceedings. Things can and often do, get messy.

Those issues alone produce some ethical issues because while most people can overcome those challenges, they are still challenges for a fair amount of the population in the US.

Using forms of communication that restrict one’s understanding or capability of participating, especially in an intentional manner, can be very unethical.

The Ethical Questions Behind Virtual Litigation

Finally, it’s time to dive into the common ethical questions regarding virtual litigation. While virtual litigation does provide many benefits, it’s not a great way to handle things in many scenarios, and it creates problems that are far easier to deal with in the courtroom.

1: It’s Easier to Influence Witnesses

This is a major ethical concern. Influencing witnesses is not allowed in a courtroom. For example, if you call a witness to a stand, and you start making gestures, verbally guiding them to say certain things the way you want them to, and otherwise ensuring that they provide biased information to the court, your case can fall apart quickly, and you’ll be held responsible for doing such a thing.

That’s not allowed during virtual litigation, either. Unfortunately, it’s far easier to both influence a witness and get away with it when you have the protection of a small viewing angle to hide things off-screen and knowingly break rules without it being noticeable.

There are some safeguards in place, but there’s always the threat of someone, even someone not involved, sitting off-camera and committing unethical acts.

2: Confidentiality

Many legal cases have a certain level of privacy about them that shouldn’t be infringed upon, and client/lawyer conversations are 100% confidential.

It is very difficult to secure someone’s privacy when a lawyer is discussing their case with them in the middle of a busy office, coffee shop, or on the subway. It goes the other way, too. Since many participants need to go to public spaces to access the technology necessary to participate in virtual litigation. It’s difficult to maintain privacy while in a coffee shop, fast-food place, or library. This opens people up to issues they shouldn’t have to deal with in many situations.

3: Sharing Information

Information sharing is crucial in any legal situation. However, when a law firm is operating entirely from a virtual standpoint, the way that information is shared comes into question. Is it appropriate to use social media platforms where anyone with access to that client’s page can see what’s going on or their page can be hacked and lead to major consequences? Are data transaction methods secured properly to prevent unwanted access to that data? Is evidence or information being altered before it’s transmitted?

All of those questions are serious matters. Some have to do with confidentiality, and some have to do with trying to cheat the system, but they are all major problems with virtual litigation that have to be handled appropriately to minimize their potential impact.

4: Procuring Information Under False Pretenses

This is an issue that we’d hope professionals wouldn’t participate in, but no one is immune to scrutiny, and it is also a proven issue that clients fall victim to. When everything is handled virtually, there’s room for people to fake their identities and gain information they shouldn’t have. For example, it’s possible to make a fake account and send a defendant a friend request; thus, gaining access to their private information without approval and without them knowing that someone is actively targeting them.

There are other ways this can happen that skew a court case in one direction or another, but regardless of how it’s done, it’s a possibility, and it’s an ethics issue.

5: Inappropriate Participation

Imagine you’re conducting an online proceeding, and the only people who are supposed to be involved are the plaintiff, defendant, and appropriate legal teams. However, the plaintiff has their family member off-screen in their living room listening to everything and influencing the behaviors of the person on camera. That is not okay.

What if the client is in a public space, and someone uninvolved with the case seizes the opportunity to disrupt the litigation? Without an effective way to determine who they are, and no one on the scene to handle the problem, it can be difficult to enforce the protocols that would normally be taken in such a situation, and the person being victimized by that behavior has little they can do to stop it.

All of these things have to be taken into account to maintain a fair and orderly litigation process.

6: Competence on Behalf of Legal Teams is in Question

It wouldn’t feel very good to know that your lawyer, who is actively representing you in your case and supposed to be paying attention, is flipped over to another tab playing a game or watching a YouTube video with captions on throughout the proceedings. It’s wildly unprofessional and should result in that lawyer getting fired.

However, it’s difficult to tell when that’s going on in a virtual setting. We see it all the time with virtual learning in school settings.

In a physical courtroom, it’s fairly easy to tell when a lawyer isn’t paying attention or doing their job, but a virtual litigation process creates problems that shouldn’t be an issue. It’s not just lawyers at fault in this situation, either. While it’s not in the client’s best interest, there is definitely a possibility of an irresponsible client not even focusing on their own case in favor of online distractions.

Is Virtual Litigation Ethical?

It’s easy to look at the downsides we’ve mentioned and write virtual litigation off as a major problem. You can also go the opposite way and look at the tremendous benefits while disregarding the issues it inherently has.

However, we don’t think either of those extremes is necessarily accurate.

Virtual litigation, like every other major evolution of the litigation process, is in a bit of a “Wild West” stage. While many kinks were ironed out during the Covid pandemic that brought virtual litigation to the forefront in the first place, there remain some major issues that need to be worked on, and systems will need to be put in place to mitigate their impact on the validity of the litigation process.

It really comes down to a case-by-case scenario and whether or not unethical actions are being practiced just because it’s easier than if the proceedings were done in person. Virtual litigation has the potential to be executed in a perfectly ethical manner, and with a bit more time to develop, it’s highly likely that, that will be the case in the future.

It’s not really appropriate to fully back or reject virtual litigation whether it’s in terms of the courtroom or simple pre-court processes between clients and lawyers, and whether you appreciate it or not, it is here to stay. So, it’s best to work toward perfecting it rather than opposing it.

Get Help with Understanding Virtual Litigation

If the advent of virtual litigation is throwing your legal team into a loop, you might need professional guidance to help you overcome the challenges it has created. For that, Litigation Legal Insight is here to help. Contact our team, today.