By Carolyn N. Daly, Esq. of Daly & Associates LLC
With the onset of COVID-19 and Governor Murphy’s stay-at-home order, the court system has had to implement a number of procedures and protocols in order to allow courts to continue functioning while we all continue to social distance. Although jury trials and other criminal proceedings are suspended, most other dockets are continuing. The court system has indicated that, come May 10th, they have enough confidence in their online operations to largely proceed “as normal” (albeit a new normal), with more and more proceedings happening every day. According to Morris County, they are conducting an astounding 420 virtual proceedings each week, or 60 per day.
However, with these virtual proceedings come questions on the ability of the judiciary and the attorneys to perform the same functions they would be performing in the courtroom. How does an attorney deal with scheduling meetings while also needing to parent young children? How do litigants, particularly in divorce matters, attempt to work out parenting time schedules and other issues related to the children when the children may be there, listening? It’s a difficult situation that everyone has had to adapt to, but there’s no denying that some proceedings are better able to adapt than others.
Take trials, for instance. While jury trials are postponed indefinitely, other types of trials and testimonial hearings are moving forward. The judiciary has made clear that divorce trials, custody hearings, domestic violence trials, and more should proceed forward. In fact, if the court is ready to hear your matter, they will hear the matter by Zoom, or other video teleconferencing platforms whether you consent to proceeding in this matter or not.
When it comes to testimonial proceedings, this can be particularly concerning. In a courtroom, a judge can see all the parties – the witness, the litigants, the attorneys – and make assessments in real time. He or She can assess credibility not just from the witness testifying, but also from the parties, when they are sitting at counsel table and listening to the testimony, and perhaps even from the attorneys themselves. But on a video call? A judge can often only see a portion of any individual on a call and they may not be looking at the camera or in front of the camera all the time. In court, the judge knows exactly what a witness has in front of him. On a zoom call, the court has no idea what the witness has in front of them or who may be in the room with them helping them, outside of the view of the camera. It raises some sticky questions, and in some cases, some serious due process concerns.
In what can now be viewed as an ironic coincidence, the court actually set the table for allowing virtual hearings in a decision published in January, just before entry of the stay-at-home order, in Pathri v. Kakarlamath, Docket No. A-4657-18T1 (you can read the decision for free here).
In the Pathri case, the parties filed for divorce in 2018, and the matter was scheduled for trial in June of 2019. (Attorneys and litigants who are currently going through divorce proceedings will likely express shock at the speed of this trial as most divorce cases take significantly longer than one year to proceed to trial.) Mr. Pathri, the Plaintiff, moved back to India after filing for divorce. One week before the trial, he informed the court he could not get a Visa to fly back to the United States, and asked to instead appear and testify from India via video conferencing.
The Judge denied Plaintiff’s motion to testify from India. In doing so, the Judge relied heavily on a case from 1988 entitled Aqua Marine Products, Inc., v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App. Div. 1988). In Aqua Marine, the court ruled that telephonic testimony could only be taken in limited circumstances where (1) the party testifying telephonically could somehow verify that he or she was who he or she claimed to be, and (2) there was some exigency, or emergency, that required testimony by telephone, unless the other party consented. The court ruled there was no exigency, and thus denied Plaintiff’s motion in Pathri.
Plaintiff appealed, and the court reversed. Noting first that Aqua Marine came from a time when video conferencing was not only unavailable, but largely unfeasible, the court set down factors for a court to consider when determining whether to allow testimony via video or telephone, although the court clearly expressed a strong preference for video technology:
- The witness’ importance to the proceeding;
- The severity of the factual dispute to which the witness will testify;
- Whether the factfinder is a judge or a jury;
- The cost of requiring the witness’ physical appearance in court versus the cost of transmitting the witness’ testimony in some other form;
- The delay caused by insisting on the witness’ physical appearance in court versus the speed and convenience of allowing the transmission in some other manner;
- Whether the witness’ inability to be present in court at the time of trial was foreseeable or preventable; and
- The witness’ difficulty in appearing in person.
The court then walked through each factor, providing guidance to judges of the importance of each factor and considerations a judge should take into account when evaluating each factor. Left untouched, of course, is the continued requirement of authentication; the court still must confirm that the person testifying is in fact who he or she says he or she is.
This decision and the factors set forth therein can assist us in determining whether, in fact, we can proceed via Zoom or other video conferencing platforms, even after this pandemic has ended. There is no question that there will be significant delays caused by insisting on the witness’ physical appearance in court (as of now, we don’t even know when courts will reopen for in person appearances) versus the speed and convenience of allowing the transmission by video or telephone. Many cases have been impacted and delayed because of the unavailability of a witness or party. This decision favors continuing proceedings, unless there are serious issues with respect to the other factors. For example, in domestic violence cases, attorneys (particularly for Defendants) are already honing arguments that their client’s rights under confrontation clause to a full and complete cross examination is hampered by having all parties proceed via video. Therefore, consideration should be given, if the Defendant wants, to simply continue the TRO until trials can occur in person as the victim is not negatively impacted by the delay since the restraints remain in place.
The bottom line is that it is clear parties will be required, for the foreseeable future, to conduct their conferences, trials, and other hearings via video conferencing or telephone. Parties and attorneys are going to have to adapt to this new normal and work together to ensure their matters proceed in a manner that ensures the best outcome for them.