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With telephonic and video appearances becoming more necessary in courts nationwide due to the COVID-19 emergency, lawyers will be expanding their use of remote communications for hearings and various other legal proceedings.
With social distancing policies becoming the norm in most communities for the foreseeable future due to the coronavirus pandemic, courts are expected to increasingly embrace remote technologies to facilitate appearances by phone and videoconference. While telephonic appearances in particular have long been commonplace in a variety of mostly civil proceedings, their widespread use, along with an increase in the proportion of remote criminal proceedings, will be new territory not just for courts but also for many attorneys.
Even lawyers who make regular court appearances as part of their practice may not have had much of a need to appear remotely in the past. Below is an overview of some of the basic rules and considerations attorneys may need to keep in mind as these methods become incorporated into their day-to-day operations to a greater degree in the months ahead.
Court Procedures During COVID-19
As discussed at greater length in an earlier post, courts across the country have been amending their standing orders and procedures on an ongoing basis due to social distancing mandates arising from the coronavirus outbreak. In an effort to slow the spread of the virus, many state and federal courts have issued temporary orders suspending trials and other in-person operations except for the highest priority matters. For everything else, a number of courts have put forth guidance similar to what the Alabama Supreme Court has provided, which encourages courts to utilize remote means including teleconferencing and videoconferencing to the largest extent possible, and even suspends any state or local rule that impedes the utilization of such technologies. These orders are being updated very frequently as the pandemic evolves, so it is important to keep up to date with any new announcements from the courts in which your clients have pending matters.
Most courts have well-established procedures for parties and their attorneys to appear by phone, and the best way to confirm what they are in a given proceeding is to check your court’s local rules. Though procedures can vary by jurisdiction, there are some common themes attorneys in many locations are likely to encounter with regard to rules for appearing by phone.
For example, telephonic appearances in California state court are governed by Rule 3.670 of the California Rules of Court, as well as more specific local rules in some cases. Rule 3.670 sets forth a general policy favoring telephonic appearances in civil matters for the purpose of saving costs and making courts more accessible, and permits their use in a wide variety of proceedings, usually those in which witness testimony is not anticipated. Though the Rule lists the types of matters in which a personal appearance is generally required, such as trials and settlement conferences, judges generally have discretion to grant leave to appear by phone in these proceedings as well. Further, some of the categories that typically require a personal appearance are likely subject to change during the coronavirus pandemic pursuant to the emergency orders described above.
Though many court procedures are being altered due to the COVID-19 pandemic, with regard to the mechanics of a telephonic appearance, courts such as the Santa Clara County Superior Court are still referring attorneys and litigants to their established process under Rule 3.670. In order to appear by telephone pursuant to this rule, parties must generally give notice to the court and any other parties via their filings, or if no papers are being filed, give notice of their intent to appear by phone in writing, in person, or by phone at least two days prior to the appearance. You must then pay any applicable telephone appearance fees or seek a fee waiver pursuant to Rule 3.670(l). Note that in many jurisdictions, vendors such as CourtCall may facilitate the actual call, and may be offering certain fee reductions due to the current public health crisis.
On the day of your telephonic appearance, try to make your call from a place where you will have minimal distractions and background noise, identify yourself each time you begin to talk, and remember to mute your line when you aren’t speaking. Bear in mind that in courts such as the US District Court for the Northern District of California, you may be discouraged from using a cell phone or speaker phone for a telephonic appearance, so plan accordingly to be in a location where you will have access to a landline and appropriate handset. For telephonic appearances in federal court, it is also important to check the standing orders of the individual judge you will be appearing before to familiarize yourself with any rules specific to that courtroom.
Appearing by Videoconference
The use of videoconferencing has been less widespread in the court system than teleconferencing, though the prevalence of this method is also sure to increase in light of the coronavirus outbreak. Video appearances are currently allowed in many civil cases for things like witness testimony, as well as other matters which often follow procedures and limitations similar to that of telephonic appearances, provided that video technology is available. Additionally, courts in places such as Placer County have been piloting the use of video to conduct civil proceedings involving short trials for unlawful detainer matters and small claims.
Other courts have implemented the use of video proceedings for traffic offenses, as well as things like bail hearings and first appearances in criminal cases. Indeed, the use of video in criminal matters involving defendants who are in custody has increased in recent years, and has been hailed by some as a means of promoting safety, streamlining proceedings, and saving costs by reducing the amount of time and money spent on transporting incarcerated individuals to and from court. However, under standards such as Federal Rules of Criminal Procedure 5(f), 10(c), and 43(b)(2), as well as corresponding state laws, videoconferencing is only permitted in criminal proceedings if a defendant consents. Even with consent, criminal defense lawyers point to logistical challenges such as a lack of privacy for incarcerated individuals seeking to appear in court proceedings by video. Further, defendants have reported disadvantages such as a decreased opportunity to advocate for themselves, and an overall impersonal feeling with the use of video appearances. The potential expansion of the use of video in more critical criminal matters due to coronavirus concerns also raises serious constitutional questions, such as whether it comports with a defendant’s right to be present and to confront witnesses at trial. Further, on the logistical front, courts must ensure that their networks have adequate bandwidth to support a high-speed connection that will facilitate clear communication and visibility for all participants.
Some of the other mandates that commonly govern video appearances of in-custody defendants in criminal matters, such as those articulated under Rule 106.2 of the New York Rules of the Chief Administrative Judge, include the ability of defendants and counsel to communicate confidentially with each other. Under Rule 106.4(a), a defendant appearing by video also cannot plead guilty to or be sentenced following a conviction of a felony offense. In California, Penal Code section 977 outlines rules permitting defendants in certain misdemeanor and felony cases to appear by video in proceedings such as first appearance, arraignment, and plea matters.
As individuals and communities take all necessary steps to slow the spread of the COVID-19 pandemic, courts are similarly seeking to protect public health to the greatest degree possible by conducting remote proceedings whenever feasible. This will inevitably mean a greater reliance on telephonic and video appearances by attorneys and parties, both in the civil and criminal contexts. Many lawyers will already be familiar with the use of teleconferencing to make court appearances, though its expanded use, along with an increased utilization of video, will be new for many. Attorneys seeking practical guidance with regard to implementing a videoconferencing system for this and other aspects of their practice can consult Justia’s guide on free and low-cost videoconferencing solutions, and let their clients know which video services they use by updating their Justia Lawyer Directory profile. Other tips for operating your practice virtually during the coronavirus emergency can be found on this list of free resources.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Justia Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.