Frederick Penney, founding partner of Penney and Associates Injury Lawyers, discusses what changes have been made to the court system since the pandemic. He analyzes whether the courts will keep the new changes that include more relaxed filing procedures and allowing individuals and attorneys to appear remotely.
Every court seems to be using video conferencing via Zoom, BlueJeans, Pexip, Polycom, Cisco, Lifesize, and other platforms to hold hearings remotely during 2020 and 2021. Using any of these platform names is meant to use the term generally as video conferencing. Ever since the Coronavirus Aid, Relief and Economic Security Act was passed the courts have changed the way they handle court proceedings. They have allowed more video conferencing and media and public access to electronic criminal proceedings, arraignments, detention hearings, misdemeanor pleas, etc. The courts have had to dramatically change their systems to allow more remote access as individuals were unable to meet in person due to state rules concerning meeting in person during the pandemic.
Many courts have now placed rules on video conferencing which must be strictly followed. Every court has its own set of rules and regulations and all parties need to follow those rules. For example, in the United States Court of Federal Claims there is a full page of rules concerning how to conduct oneself while video conferencing. Some are thinking that the days are gone where almost everyone had to show up in person to court and follow strict specific courtroom attire, etiquette, and rules.
The focus of this article is to review some of the positive and negative issues surrounding video conferencing in court and through the litigation process. As a practicing California trial attorney, I do have some concerns or worries about the technology, security, and use of video conferencing. What is going to happen if someone is in the background on the video conferencing with the court and they accidentally unmute their microphone? Some things might be heard that the court or individuals on the call do not or should not hear.
Incidences on Zoom During Court Proceedings
Some interesting things have happened since the courts have allowed video conferencing for court appearances. Probably the most famous and viral video is of a lawyer on Zoom with two other lawyers appearing before a judge and one of the lawyers zoom picture was a cute white cat on the screen instead of the lawyer. Apparently, the attorney was using his assistant’s computer and she failed to take off the filter making the individual on the screen look like a cat. The judge reminded the attorney that he was appearing as a cat and the lawyer acknowledged that and told the judge he was ready to proceed with the hearing and that he was not a cat. Luckily, everyone got a kick out of the funny mistake and nobody was disciplined.
The San Jose Mercury News reported another embarrassing mistake by an insurance adjuster that occurred in San Jose, California. The court had allowed individuals to appear by phone and video conferencing. Judge Roberta Hayashi was in the process of setting up the jury seating due to Corona Virus issues when someone was heard saying something in a very clear voice over the phone. Unbeknownst to this insurance adjuster he failed to mute his microphone and he blurted out “this f…… judge is an idiot”. At the time nobody knew who was speaking and the judge was very calm and collected and simply stated, “well I’m sorry you think I’m an idiot, but I really think you ought to mute your microphone before you say that.” The judge then said a few other things and cleared out the jury from the courtroom. She then attempted to find out who said those choice words but there were several people that were participating remotely making it difficult to find the culprit. She finally found out who it was and after a long discussion decided not to dismiss the case as the jury did not know who said the words or whose side the insurance adjuster was on. In fact, the jury never knew the speaker was an insurance adjuster.
A video conference call to a court had a positive effect on a Michigan hearing where the court, attorneys, and parties were on a video conferencing hearing concerning an alleged assault by Coby James Harris against his then-girlfriend Mary Lindsey. Mr. Harris had been released from jail on bond under the condition that he was to not have any contact with Mary Lindsey. However, Ms. Lindsey’s attorney noticed something on the zoom and believed that it was Mr. Harris in the same room as Ms. Lindsey. After a further inquiry from the Judge and attorneys, it was determined that Mr. Harris had violated his bond and was at the home of Ms. Lindsey on the video conferencing. Soon the police were at Mary Lindsey’s home arresting Mr. Harris. A possible disaster was diverted by the latest video conference court hearing.
On February 25, 2021, in Sacramento, California, Dr. Scott Green was performing plastic surgery on a patient when he had to appear in traffic court. His surgeries were taking longer than expected and he had an assistant hold the phone on a video conference call with a court over a traffic incident. Present was the police officer, the surgeon, and the judge. It is important to note that the doctor had another surgeon with him taking over while he was on the video conference call with the judge. There were also no videos taken of the patient and the patients name was not known. The video shows the doctor in his scrubs, mask and gloves and the operating light above. Shocked the Judge asked the doctor if he was in surgery and the doctor acknowledged that he was. Incensed, the Judge continued the trial to allow the doctor to appear for his alleged traffic violation via video conferencing when he was not in surgery.
On February 22, 2021, Bay County Michigan’s Michael Wright was appearing before the court via video conferencing with no shirt on. However, it became more obvious that he was not wearing much else. The judge stated, “Sir you’re…you’re…naked”. Mr. Wright was then advised by Judge Joe Sheeran to put on some clothes for the video conference hearing. The hearing was paused while Mr. Wright got appropriately dressed for the occasion.
These are just a few examples of issues occurring in court due to allowing remote access to the court hearings. As this continues there are bound to be more and more interesting, scary, and funny moments during live court video conferencing.
Changes Other Than Video Conferencing
As an attorney of almost thirty years, I have seen court rules change over the years. Generally, the changes are subtle and not too drastic. The old rules about appearances, dress, demeanor and court rules about sending documents to the other parties involved in a lawsuit were very strict. Things have dramatically changed and in a matter of months. After the pandemic hit, some courts began to allow attorneys to send document requests and responses to other parties via facsimile or e-mail. The courts are now allowing these venues of communication to be deemed officially served on a party. This became more and more prevalent by the end of 2020 and the beginning of 2021. Now parties, courts, and attorneys are getting used to these quicker and more efficient ways to send notices and get work done. Before the changes due to the pandemic, the amount of time to serve parties and appear in court was daunting and an attorney could only do so much work. Now with the allowance by the courts of most litigation discovery and hearings via video or phone conferencing the attorneys are able, with less effort, to get more work done. Will this trend continue, I believe it will to some extent especially as the courts and attorneys get used to the idea of doing more things quicker, more efficient, and right from the comforts of their home or office?
What Other Lawyers Think of the New Relaxed Rules
Attorney Todd Kuhnen, one of the hosts of the nationally syndicated radio show Radio Law Talk, sat down with me to answer a few questions about the latest issues and future of courts becoming more oriented and accepting of remote appearances.
Frederick Penney: How long have you been practicing law and what is your area of practice?
Todd Kuhnen: I am a criminal defense attorney and former prosecutor for 10 years and have been in private practice for about 6 years in California. I am also the co-host of the nationally syndicated radio show Radio Law Talk. I also am an actor and have been a voice actor in major video games. I have also been the lead in several commercials on television.
Frederick Penney: Prior to the pandemic how quick were the courts making technology changes? For example, were they allowing video conferencing prior to the pandemic?
Todd Kuhnen: The topic of discussion was always coming up about future video appearances, but there did not seem to be an urgency to change the way the courts were requiring attorneys and individuals to personally appear in court. This was just the norm. Technology was coming along, and the court seemed to embrace some of that technology but in a cautious manner so as not to cause any issues with the integrity of people showing up to court in person.
Frederick Penney: Have you noticed that the courts allowed more video appearances once the pandemic hit? Do you think this was on their own volition or that they were forced to make these dramatic changes?
Todd Kuhnen: Very much so, they were forced to adapt quickly. One of the things that slow the court down is the pleasantries the how are you type of salutations when you appear live. With video conferencing a lot of that is done away with and it is more like you get in and get out much quicker. When you are live in court sometimes there are other matters in front of you and you must patiently wait for your turn. When you are remote you can get other work done while you are waiting for your turn to appear.
Frederick Penney: Tell me a few of the changes that have occurred with discovery and the court hearings since the pandemic started in early 2020?
Todd Kuhnen: Some examples of the changes is that almost all the discovery is provided electronically via e-mail. I am told to go to a portal and download discovery and that is new. Before there were more formal document productions and required mailings. Appearances are now more liberally allowed via telephone or video conferencing especially if it is early in the case. If the case has been lingering for a while the judges are more prone to tell the parties to come in and talk over the case. Another change is doing hearings via video conferencing which I do not really like because it is difficult.
Frederick Penney: How is it more difficult?
Todd Kuhnen: When it comes to cross-examination, I rely somewhat on the body language and actions of the party being cross-examined and it is more difficult to read that body language if it is telephonic or via video conferencing. Also, it is difficult to know whether someone is in the room with the witness. I always bring a motion or request that nobody be in the room with the person being examined but I do not know, or it would be difficult to prove if someone is in the room with the deponent. I will give you a quick example. Recently there was a case in Michigan where there was a domestic violence preliminary hearing with a protective order in place that did not allow the boyfriend to be in contact with his then victim. During the hearing it was clear that he was in the same room with the victim while she was testifying. This is the problem with the video conferencing and not making people show up to court live where the judge has more control and see what is going on.
Frederick Penney: Do you like the new changes?
Todd Kuhnen: In general, for routine video appearances, yes I like the new system, but for contested hearings or trials, no.
Frederick Penney: Have these changes helped or hurt the integrity of the court system?
Todd Kuhnen: Both, as I explained the judge needs to keep things in order and many times it is difficult for the judge over zoom. In the courtroom people are there and he can take more immediate action.
Frederick Penney: What things have you had to do to adjust to the new remote system the courts have put into place?
Todd Kuhnen: I have made sure that I have a very reliable internet connection for every remote hearing, and I stopped letting my kids use my dedicated computer or phone for the court proceedings. I do not want to be a cat on the call. Ha Ha.
Frederick Penney: Do you think the future courtroom experience will be more remote as time goes on?
Todd Kuhnen: I cannot predict the future, but I will say this. After a year of this if the court feels like things have been handled more efficiently without an impact of the integrity of the court system, then it will stay. But that is for the courts to decide. Stay tuned.
The future of the court’s use of technology and remote appearances is in some areas here to stay, as the pandemic caused the courts to have to ramp up quicker than expected. However, there will be some further changes to the system to make it more efficient and not so burdensome on some that may be able to perform lower priority court procedures and hearings more remotely. There is only one way to go and that is forward with the courts catching up to the technology of the day. Stay tuned, a year from now we will probably have a better understanding of what the courts keep in place.
