There is a social cost to space—and space is what we have, in abundance, in eastern Montana. One of those social costs is the increased difficulty of providing legal services to those who cannot afford their own lawyer. A way I have found to effectively address this problem is through the use of video conferencing in the courtroom.

The judicial district I serve consists of seven counties in southeastern Montana comprising an area roughly the size of West Virginia. Approximately 24,000 people live in this district, basically one person per square mile. Currently, just 27 lawyers in active practice reside in these seven counties. Four of the counties have only one resident attorney, that attorney being the county attorney. No Legal Services Corporation office is located in the district. These demographics mandate a different approach to access to justice issues than those used in more populated areas. For example, while lawyers in Montana have a duty to perform pro bono legal services, it is not practical for any lawyer to travel among the seven counties and effectively provide pro bono representation to an indigent client, especially since the majority of the lawyer’s time will be spent in his or her 4x4 truck (necessary for travel in Montana’s two seasons: winter and road construction).

To address this issue, a pilot project was developed in my judicial district through cooperative efforts of the LSC-funded Montana Legal Services Association (MLSA) and various state agencies to install video conferencing in the courtroom. Using grant funds, a direct link was established at a MLSA office in Missoula, a city 500 miles from my resident courtroom in Miles City. I have control over the use of that link in order to be certain that necessary confidentiality and independence are maintained.

Video conferencing hook-ups were also installed in a room adjacent to the courtroom. By appointment only, a MLSA paralegal brings clients to this room and video conferences with an MLSA attorney located in another city. Necessary trial preparation, including witness interviews, is accomplished by the video conferencing link. If a trial is necessary, I have allowed attorneys in civil cases to appear by video conference as long as they have a representative (usually a paralegal) in the courtroom to assist in the physical presentation of exhibits. I have also allowed attorneys to call witnesses by video conferencing.

Any judge, and most lawyers who read this, will immediately be concerned about courtroom control and effective client representation with video conferencing presentations in the courtroom. I was too. What I have observed is that I can maintain courtroom control and that clients are well represented, providing the attorney is well prepared, which is the same caveat for “regular” courtroom appearances. The system allows me to scan the room from which the video conferencing originates at any time to view others who may be there and to determine whether “coaching” or witness interference is taking place. A few months ago, for example, I was conducting a dissolution of marriage trial in which the party and her attorney were appearing by video conferencing. The opposing party, with his attorney, was present in the courtroom in Miles City. During the proceedings, while the party at the remote location was being cross-examined, I scanned the area and observed a person in the gallery apparently sending hand signals. After making certain choice comments, I directed the person to stop and to leave the courtroom. I had no trouble asserting control and dealt with the situation just as I would if it occurred in my physical presence.

As to the quality of representation afforded clients who sometimes never meet their attorney in person, I can say with complete confidence that they are effectively represented and achieve much better results than proceeding pro se. If during trial or other hearings, a client wants to speak with his or her attorney in private, a short recess is taken and the courtroom is vacated to allow the conference to take place in private. I have found that privilege is seldom used and has never been abused. Because of the difficulties a judge has in dealing with pro se parties, I think all judges should be very flexible and understanding in allowing such conferences. After all, the goal is to achieve justice, and represented parties make justice easier to find.

We have used video conferencing in many other ways to compensate for the “cost of space” issue. For example, involuntary commitment proceedings in Montana require at least a two-hearing process. First, the alleged incapacitated person is brought before the judge for an initial hearing and to consider a request for detention. If detention is ordered, the closest appropriate secure facility is 400 miles one way. The second hearing (adjudicatory) must be held within five days. If detention is necessary, the respondent must be transported 400 miles to the hospital and brought back 400 miles for the adjudicatory hearing days later. If committed, the respondent must then be transported back to the hospital. With video conferencing, the adjudicatory hearing can be conducted without the need to transport the respondent (during all types of weather). The savings in costs, not to mention the hardship on the respondent who is already in distress, is significant.

Video conferencing is also a time and cost savings to the judiciary, attorneys, and clients when used for motion arguments, settlement conferences, negotiations, training, and committee meetings, to name just a few applications. In a perfect world, I would prefer that all parties, witnesses, and attorneys be physically present in my courtroom. However, given the realities of funding for legal services, pro bono difficulties, and the demographic realities facing residents of eastern Montana, video conferencing provides the best method of improving access to justice since the invention of the telephone.

n The Honorable Gary L. Day has presided over Montana's 16th Judicial District, based in Miles City, since 
   1997.