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August 3, 2021

"Empathy and Remote Legal Proceedings"

The title of this post is the title of this notable new paper authored by Susan Bandes and Neal Feigenson now available via SSRN.  Here is its abstract:

Do remote legal proceedings reduce empathy for litigants?  Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants.  Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. 

The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research.  However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.  On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers.  We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

August 3, 2021 at 03:28 PM | Permalink


Change is often difficult for the judiciary but as a result of COVID there has been a rapid change toward remote hearings. Zoom is after all quite convenient. But before this change is made a permenant part of how courts operate concern about whether there is a change in outcomes needs to be explored. As reluctant as courts are to blind studies in the legal system perhaps we need to conduct serious research about what if any changes Zoom or remote hearing cause. we simply cannot afford to get this one wrong.

Posted by: Judge Kevin S Burke | Aug 4, 2021 2:29:13 PM

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