Turn On Your Video!

Few things are more annoying to a judge than when we can't see the litigant or lawyer we are addressing (or who is addressing us). I once heard a judge describe it on Zoom as the equivalent of "hiding under the benches in court."

During the height of the pandemic, there were judges who were not turning on their video as well. Without naming names, my former presiding judge once had to remind everyone in the division to turn on their videos. To a self-represented litigant–much less a lawyer–it must be like addressing the Great Oz in "The Wizard of Oz": "Pay no attention to that man behind the curtain!" Pay no attention to that judge on the blank screen. It was inexcusable and unacceptable.

As the leaders of a hearing, judges have always had the obligation to set and exceed the standards of proper decorum in court. This maxim applies as much in the virtual courtrooms of Zoom as it does in traditional court. Judges wear robes–a more neutral garment than lawyers’ suits–to set a standard of dignity in the courtroom.

Furthermore, every party in court should address judges as "Your Honor" to further establish that the judge is the highest authority in the room and to remind judges of the sacred obligation they hold. This title represents the sustained commitment to due process and fairness that citizens and voters expect of their esteemed judges. 

The world, the United States, and Illinois are still in the first phase of a virtual transformation that has enveloped many aspects of life–not the least of which is our court system. Zoom court is now a reality that is here to stay. Judges are the standard bearers in establishing proper decorum in virtual court, just as they are in traditional court. Turning on one's Zoom camera is just as simple as slipping on a robe or saying, "Your Honor." Yet this straightforward component of virtual court is more integral to a fair trial or hearing than proper attire or properly addressing the judge. Without a video feed, the judge cannot demonstrate that they are paying attention to the adverse parties’ arguments. A callous lawyer could assume that judges who fail to show themselves might as well be sleeping on the job. Considering everything that could happen behind a blank screen, a judge’s resemblance to the Wizard of Oz may be wishful thinking.

It should be a given that judges use reliable microphones and a stable internet connection, yet some continue to have issues with this. Judges, in accordance with their role as leaders of court proceedings, should also have sufficient technological literacy to perform their duties and even help troubleshoot issues that less tech-savvy litigants are bound to encounter. Technological literacy by all parties is essential to a fair hearing, and judges should be committed to helping with this.

In addition to being a crucial component in the decorum of the virtual courtroom, video serves as one of the two components of communication that judges weigh–the other being oral communication. Body language, hand gestures, and facial expression are core visual communication elements that judges and juries have long relied on to assess the credibility of attorneys and witnesses (it is, of course, impossible to assess any of these from a blank screen). It is more difficult for the court to guarantee litigants a fair proceeding–especially in comparison with in-person hearings–if the visual element of communication is entirely absent. Thus, judges should expect parties and lawyers to use video at all times in virtual court.

Furthermore, video can often aid with Zoom’s unreliable audio and help judges diagnose the parties’ technical issues. A poor microphone or an unstable internet connection can create a communication barrier unknown in physical court proceedings. Although judges and court reporters can only marginally decipher oral communication through lip reading on the video feed, having this visual component can help them diagnose whether it is a microphone, internet, or technological literacy issue. 

It is important not only for parties to complete the crucial step of turning on their video, but also to stay in an appropriate location during the proceedings and to minimize distractions. In my time as a judge, I have seen litigants call from moving cars, on a busy street, and even on the toilet. Such behavior is the equivalent of showing up to a physical court in underwear or loudly eating a large lunch at the counsel table. These examples show a blatant disregard for court decorum that insults the dignity of the court. Judges should refrain from hearing litigants who cannot find an appropriate background until the litigants in question rectify these problems. Likewise, judges should make note of significant distractions and admonish parties to correct them. In principle, judges should not tolerate behaviors on Zoom that they would not tolerate in a physical court. This follows the established position that courts should be free from behaviors that disrupt decorum.

In sum, turning on one’s video conveys the crucial element of visual communication. Video preserves court decorum and furthers the interests of justice. If litigants have video capability on their devices, they should be both heard and seen. They should not do the Zoom equivalent of hiding under the benches in a physical courtroom. Because that is exactly what appearing without video is like. Additionally, lawyers and litigants should expect litigants to find a suitable background and minimize distractions as a matter of respect for the court. They should come out from under the benches by turning on their video and respect the Court on Zoom just as they would in person.

Hon. James A. Shapiro is a judge in the Domestic Relations Division of the Circuit Court of Cook County and a Past President of the Decalogue Society of Lawyers.

Thomas DeMouy is a second-year law student at the University of Illinois College of Law.

Judge James A. Shapiro (he/him)
Domestic Relations Division
Calendar 86
james.shapiro@cookcountyil.gov