By Jeralyn Lawrence, AAML NJ Chapter President

In January 2020, the New Jersey Appellate Division made an unexpectedly timely ruling on the use of video testimony in family matters being heard by the court. While the state's Court Rules neither explicitly allowed for nor prohibited video testimony, courts have made an array of rulings in different cases regarding the acceptability of witnesses appearing over a video link. In Pathri v. Kakarlamath (462 N.J. Super. 208 (App. Div. 2020)), the Appellate Division refined the factors for judges to consider when responding to a request to deliver testimony via video.

Only a few short months later, the COVID-19 pandemic dramatically changed the way all cases, including family matters, are heard in the New Jersey courts. Even if that change is  temporary, the decision in Pathri helped to lay a firm foundation for the ensuing hearings. Whether due to health considerations or other concerns, the technical revolution in video technology made the court's decision timely and highly relevant for all practitioners in New Jersey. Many are hopeful that these technological advances remain in place indefinitely.

Case Background

The Pathri case concerned a family that had immigrated to the United States, arriving from India in 2007. In 2018, the husband filed for divorce shortly before returning to India; the wife then filed a counterclaim. She lived in Maryland with the couple's two children. Once the case was scheduled for trial in May 2019, the plaintiff sought an order granting permission for him to appear via video remote testimony, saying he was unable to obtain a visa to the United States to appear in court.

While it does not appear that contradictory facts were presented indicating that the husband would in fact be able to receive a visa, the trial court rejected his motion after the wife opposed it. To this end, the court relied on Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp. (229 N.J. Super. 264 (App. Div. 1988)) a contract case in which a witness sought to present testimony via telephone link.

The Aqua Marine court created a two-part test to determine whether remote testimony was acceptable:

In the Pathri case, the judge ruled that her ability to determine the credibility of the plaintiff's testimony would be negatively affected by his lack of physical presence. The plaintiff then appealed, and the decision from the Appellate Division followed.

A Modern Approach to Video Testimony

In Pathri, the Appellate Division recognized the necessity of an approach to remote testimony that reflects the array of technological options that were impossible and, indeed, unimaginable, at the time of the Aqua Marine decision. The court began by noting that the Court Rules allow for testimony to be presented without physical presence, as in the case of capacity hearings or physicians providing trial testimony via videotape.

Distinguishing the present case from Aqua Marine, the court noted that there had been no prior discovery of the witness who sought to testify remotely in that case. In addition, the only option offered for contemporaneous remote testimony was telephonic, without the additional opportunities that modern video technologies offer to allow thorough questioning and examination of the witness.

In the Aqua Marine ruling, the court noted that it would be difficult to determine the credibility or even verify the identity of the speaker, given that they would appear only as a voice over the telephone. While modern technology eliminates some of the practical issues in Aqua Marine, there remain important reasons why courts may remain skeptical of video testimony, at least when other witnesses will appear in person at the same time. (When all witnesses appear via video, the same limitations are broadly shared.)

The court did not overrule Aqua Marine, noting that the test presented in the case was correct. It referred to the Federal Rule of Civil Procedure 43(a), which allows testimony via live video transmission "for good cause in compelling circumstances and with appropriate safeguards..." a standard very similar to that applied in Aqua Marine. While the two texts use different language to describe those circumstances, the rationale presented is equivalent: That is, witnesses may testify remotely when the circumstances are appropriate.

Pathri Test for Remote Appearances

The court laid out seven factors for judges to consider when evaluating a request to appear via a live video link. These factors are:

The court noted that video testimony is most appropriate when witness testimony is not essential. The more heavily disputed the facts relayed by the witness, the greater the weight against live video testimony. In addition, in cases where a judge is finding facts rather than a jury, video testimony may be more acceptable, as judges are more experienced than laypeople in determining credibility and assessing the value of testimony.

The court also noted that the interests of justice allow for video testimony that alleviates problems with scheduling, prevents delays or allows greater efficiency in the trial process. To this end, the court noted New Jersey Rule 1:1-2, which notes that the rules should be construed to "secure a just determination, simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay." It emphasized that decisions about video testimony should serve the aims laid out in this rule.

Further, the court did not distinguish testimony on matrimonial matters from other types of testimony. The Aqua Marine case reviewed as precedent was a contract dispute, while the court referenced telephonic hearings in guardianship procedures as a useful example.

However, the court warned of attempts to avoid appearing at trial, noting that if the witness is responsible for their inability to be present, this may weigh against allowing video testimony. In light of these factors, the Pathri court sent the case back to the trial court for further consideration.

Repercussions of the Pathri Decision

The Appellate Division's ruling reflects a preference for obtaining testimony, even if imperfect, over not allowing testimony at all. The court noted the potential unfairness in disallowing remote testimony with the effect of leaving only one party to speak. However, the court also made room for many conditions on the testimony as well as consideration of multiple factors that could weigh against allowing such video appearances. The court also noted practical factors that judges may consider, such as the ability of the judge or jury to see the witness's face or body language as they speak or potentially requiring testimony to take place in a specific location.

The court also requested the rules committee of the Supreme Court to consider the issue for formal inclusion. Since the Pathri ruling, live video testimony has become the norm, as have remote appearances by judges and members of the jury. The changes created by the COVID-19 pandemic built upon an existing technical framework and the decision in Pathri, allowing the courts to continue to function despite significant limitations on the ability of people to appear in person.

Video Testimony After the Pandemic

In March 2020, the Administrative Office of the Courts issued a directive allowing trials to proceed via Zoom, Microsoft Teams and other platforms, including divorce proceedings. Even as the pandemic waned and attorneys, litigants and judges returned to some in-person hearings, many matters have continued to proceed remotely. Judges have the authority to schedule in-person proceedings based on the circumstances or facts of each case.

Remote trial testimony outside the pandemic may raise additional concerns for some of the reasons cited by the court. Witnesses may attempt to avoid more thorough scrutiny by making themselves absent for trial, leading to credibility determinations becoming more challenging. Technical glitches, certainly a factor in court-over-Zoom during the pandemic, could also make remote testimony an additional challenge during an in-person hearing. However, there are also significant positives to remote proceedings, such as convenience and in keeping costs down.

Takeaways for Practitioners

There are a number of issues with which practitioners may wrestle when dealing with requests for video testimony, especially as an exceptional matter. When representing a client or seeking to present a witness who is unavoidably overseas, engaged in work travel, located in a remote or inaccessible area (such as oil and gas workers) or unable to attend the trial for any reason, the ruling in Pathri provides clearer guidance as to the arguments that must be made. The Appellate Division provides seven factors that are relevant to a judicial decision,and presenting arguments for each of those factors would be beneficial to any practitioner seeking approval for remote testimony.

When the opposing party seeks to present remote testimony, the court also provides useful factors for determining whether to oppose the application. If a practitioner is concerned that the opposing party is specifically seeking to avoid scrutiny or dodge questions of credibility, the Pathri factors provide space to emphasize these issues. The ruling, while providing a broader scope for video appearances, also presents clear issues of concern for the court.

While video testimony and Zoom court have become the norm in the period following the Pathri decision, the elucidation of clear factors for video testimony and the recognition of modern technologies present a useful framework for all practitioners seeking or opposing permission to appear remotely.