By Michael Millstein

 

As law students around the country embark on their respective journeys in the legal world, one of the first pitstops along the way is in the world of civil procedure. Civil procedure is a course taught in the first year (“1L”) of law school which “consists of the [federal] rules by which courts conduct civil trials.”[1] One major question which frequently arises in civil procedure, is that of where you can sue someone. In order to sue someone in federal court, the rules provide that the court in which the complainant has filed must have subject matter jurisdiction, personal jurisdiction, and proper venue for the respondent.[2] The element of personal jurisdiction, has, for decades, been frequently litigated, leading to several landmark decisions.[3]

The policy decision behind personal jurisdiction is to only haul a respondent into court to such an extent that is fair to him/her.[4] In the crucial case of International Shoe, the Supreme Court held that an individual’s minimum contacts with the forum State, subsequently provided that State with personal jurisdiction over the respondent.[5] Since this holding, several court cases have expounded upon the definition of “minimum contacts” and have further refined the rule itself.[6] In addition to minimum contacts, if a respondent is either served with process in the State where suit is filed, or resides there, personal jurisdiction is appropriate.[7] Now, in the modern pandemic-era, the question arises of whether or not platforms such as Zoom may eliminate the stringencies of proving that a court does have personal jurisdiction over a respondent.[8]

Several key advantages may arise from allowing Zoom to supplement the traditional personal jurisdiction rules. One such advantage is the ability to open the court’s doors to more people by reducing both the time and monetary costs of litigation.[9] In just the past 12 months, an astounding 432 challenges of personal jurisdiction have reached the appellate level, guaranteeing a lengthier trial.[10] Providing an incentive to not challenge personal jurisdiction may assist in reducing this number over the next 12 months. Furthermore, in situations where personal jurisdiction is appropriate, the opportunity to participate via zoom may reduce travel costs for the respondent.[11] In Justice Breyer’s famous opinion in McIntyre, he opined the Appalachian potter to a corporate machine, reasoning that it is not fair to anticipate that both entities have equal opportunity to travel in order to defend themselves.[12] Furthermore, with the potential reduction in the frequency of litigation involving disputes over personal jurisdiction, this may help speed up the process of ongoing cases, which may otherwise take several years to resolve.[13]

In spite of the plethora of exciting opportunities which integrating Zoom into our legal system presents, such opportunities are nevertheless met with potential downsides. Three key questions to consider when assessing how greatly we aspire to have our legal system rely on Zoom, or any technology for that matter, are: (1) how fair a zoom trial is; (2) if it would phase out the older generations of attorneys, complainants, and respondents; and (3) if this disadvantages those who come from a less well-off socioeconomic standing. After a year of Zoom trial results to analyze, studies show that Zoom trials are linked with higher bail amounts; limited effects on the use of video evidence; and harsher outcomes for defendants/respondents in general.[14] Although Zoom increases “access and accountability,” its inability to guaranteeably do so for the elderly, and the homeless communities, coupled with its harsher outcomes, may cut against its implementation for personal jurisdiction purposes since it does not inherently promote equity.[15]

Regardless of whether or not the advantages of Zoom supplementing personal jurisdiction outweigh the potential costs, the primary issue left to analyze is whether or not one may waive one’s right to a zoom trial in order to enforce a court to require the traditional personal jurisdiction standard.[16] If so, does this really solve anything, and how should courts handle this? Though a legal standard on waiver is far down the road, as this entire dilemma is nothing more than a mere hypothetical for now, courts may choose to say that a waiver of the right to a zoom trial at any point is an irrevocable waiver.[17] In doing so, the court effectively says that if one opts to challenge whether or not the court has personal jurisdiction over oneself, that this challenge (1) acts a waiver of the right to a zoom trial, and (2) if the court rules against the challenger, this waiver may not be revoked.[18] In essence, this leaves the potential challenger with the decision to either risk paying travel costs via waiver and a challenge of personal jurisdiction, or to simply choose to consent to a zoom trial. Lately, American society has demanded changes to what many refer to as a “broken system.”[19] Whether that same crowd will soon demand the implementation of zoom to remedy the legal system poses a question to potentially be answered in the very near future.

 

[1] Cornell Law School Legal Info. Instit., Civil Proc., https://www.law.cornell.edu/wex/civil_procedure (last visited Oct. 20, 2021).

[2] See Fed. R. Civ. P. 12 (requiring that a complaint state that a court has the requisite subject matter jurisdiction, personal jurisdiction, and venue necessary in order to hear a case).

[3] See, e.g., Pennoyer v. Neff, 95 U.S. 714, 735 (1878); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger King, Corp. v. Rudzewicz, 471 U.S. 462, 487 (1985).

[4] Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1019 (2021).

[5] International Shoe Co., 326 U.S. at 316.

[6] See, e.g., Id.; Pennoyer, 95 U.S. at 735; Hanson v. Denckla, 357 U.S. 235, 256 (1958).

[7] See Burger King, Corp., 471 U.S. at 487 (further refining the rule of what contacts and actions taken by a company can subject it to personal jurisdiction in the forum state); Pennoyer, 95 U.S. at 735 (holding that a state has personal jurisdiction over the citizens residing within it).

[8] William Antonelli, What is Zoom? A Comprehensive Guide to the Wildly Popular Video-Chatting Service For Computers and Smartphones, Business Insider (Nov. 18, 2020, 2:52PM), https://www.businessinsider.com/what-is-zoom-guide.

[9] Lauren Kirchner, How Fair Is Zoom Justice, The Markup (June 9, 2020, 10:00AM), https://themarkup.org/coronavirus/2020/06/09/how-fair-is-zoom-justice.

[10] See Westlaw, Cases (last visited Oct. 21, 2021), https://1.next.westlaw.com/Search/Results.html?query=personal%20jurisdiction&jurisdiction=ALLCASES&contentType=CASE&querySubmissionGuid=i0ad62aef0000017ca3be81896c444160&searchId=i0ad62aef0000017ca3be15cc8fdc3549&transitionType=ListViewType&contextData=(sc.Search) (searching “personal jurisdiction” in the search bar).

[11] See Scott McCartney, The Covid Pandemic Could Cut Business Travel By 36% — Permanently, WSJ (Dec. 1, 2020, 8:48AM), https://www.wsj.com/articles/the-covid-pandemic-could-cut-business-travel-by-36permanently-11606830490 (noting how the pandemic, and new telecommunication platforms, have intertwined to limit the frequency of business trips, and subsequently the costs of travel for those businesses).

[12] J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 891 (2011) (Breyer, J., concurring) (highlighting that “[w]hat might appear fair in the case of a large manufacturer which specifically seeks, or expects, an equal-sized distributor to sell its products in a distant State might seem unfair in the case of a small manufacturer (say, an Appalachian potter) who sells his products . . . to a buyer from a distant state”).

[13] See Taylor Dalton, Federal Civil Cases Are Resolved in a Year On Average, But Obtaining a Judgment Through Trial Adds an Extra Year, The Juris Lab (May 26, 2021) (highlighting that the average civil trial lasts 364 days, which allows us to infer that an intervening dispute over personal jurisdiction can prolong the outcome of a court case for well over a year).

[14] Kirchner, supra note 9.

[15] Id.

[16] See generally Restatement (Second) of Conts. § 84 (Am. L. Inst. 1979) (detailing how waivers work in contract law).

[17] Id.

[18] Id.

[19] Clark Nelly, Our Broken Justice System, Cato Institute (June 2019), https://www.cato.org/policy-report/mayjune-2019/our-broken-justice-system.

Image Source: https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392