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Arguments And Proposed Standards For Virtual Appearances

Fall 2020, Issue 4

The COVID-19 pandemic revealed in bold the systemic failure of the court system to respond to crisis. Courts shut down and each of the 58 counties hobbled together their plans for opening, both virtually and physically. Many counties adopted a form of a remote hearing/ trial platform: Zoom, BlueJeans, WebEx, and others. Many people on both sides of the well long for a physical “reopening.” They should not.

Schumpeter’s gale1 rages and cannot be stopped. It should not be stopped. In 2006, the Administrative Office of the Courts in conjunction with the California Department of Health Services published a report titled Epidemics and the California Courts.2 That report urged:

In an effort to reduce face-to-face interaction and adapt to employee absenteeism, alternative means of work performance and communication should be explored, which could include:

  • Allow staff to If a telecommuting policy is implemented, the court should determine the hardware and software requirements for staff working off site as well as the telecommunications protocols and associated security to establish connectivity to the mission-critical applications.
  • Use videoconference or teleconference technologies or For planning purposes, assume that most court proceedings included within the mission-critical functions and other tactical objectives can be held by videoconference or teleconference under the emergency conditions described in this document.
  • Increased use of video arraignments

That report was written in 2006. By 2020, very little of those recommendations were adopted before the COVID-19 pandemic. AFTER the pandemic started “we” started to use video conferencing for court appearances and trials. We learned that virtual appearances were a practical solution to in-person appearances. We learned that virtual appearances are a) cost effective; and b) in this writer’s opinion, a superior mechanism to present evidence. In addition, it provides better access to justice for litigants, who can log into a virtual court and not need to take off an entire day of work for a hearing or figure out a way to get to the courthouse.

Prior to the pandemic, a hearing required attorneys to spend a significant number of hours traveling to court, parking, and printing physical exhibits. In the physical court days, a proceeding could proceed as follows:

Lawyer: “Let me draw your attention to page 98 of binder 2, bates stamped page 3035.”

Litigant: “Is it the March 2017 Wells Fargo statement?” 

Lawyer: “No, it’s in the other binder.” Litigant: Hold on, I’ll find it.

Judge: “Let’s take a 15 minute break for the court reporter.”

Same exchange during a video trial:

Lawyer: “Let me draw your attention to PDF page 63.” Witness: “I am not seeing it.”

Lawyer: “Your honor, may I have screen controls.” Judge: “You are elevated to host; you have the controls.” Lawyer: “Thank you Your Honor. Can everyone see my screen? Let me direct your attention to the document on the screen….”

Documents are exchanged by PDF, there is no need to exchange physical binders or paper. With a little organization, which I discuss below, trials and hearings can be managed much more efficiently than physical trials.

There is some movement by the Judicial Council to mainstream virtual hearings. In its Strategic Plan for Technology 2019-2020, the Strategic Plan Update Workstream and the Judicial Council Technology Committee stated:

Digital transformation is required for the judicial branch to meet the needs of the people of California. Innovative solutions will help automate the courts’ manual processes, provide tools for judicial officers and staff, and expand digital services to the public. In addition to funding, creative approaches are required to deliver these solutions in an efficient and cost-effective manner across 58 counties with varying degrees of technological maturity, staff, and financial resources.3

This, in part led to LEG20-02 which proposes the addition of Code of Civil Procedure (CCP) section 367.7. CCP section 367.7, in its current proposed form reads as follows:

  • It is the intent of this section to improve access to the courts and reduce litigation costs by providing that a court may, as appropriate and practical, permit par- ties to appear in court by video in all civil actions and proceedings including trials and evidentiary
  • A court may permit a person to appear by video in any civil action or
  • The Judicial Council may adopt rules effectuating this section.

This is a step forward; however, it does not go far enough. The default method of conducting hearings and trials should be virtual with the court having the option to order in person appearances upon a showing of good cause.

Virtual appearances are easy! All you need is a virtual platform, a computer with a camera, microphone and a speaker, and Adobe Acrobat DC pro. If presenting larger, more document intensive hearings or trials, two monitors are helpful as you have more desktop space to work. The following is a proposed system for video presentation.

Note: These rules/concepts are prepared predicated on the following principles in mind:

  1. Review and tracking of exhibits must be easy for wit- nesses and the judicial
  2. The process should mimic or improve on physical world rules of practice and
  3. The system needs to be simple and teachable based on readily available
  4. These procedures should be secure, stable, and

Trial Binders:

Trial binders shall be prepared using the same format as is used in the physical world. Exhibits must be marked using numbers for the petitioner and letters for the respondent. Binders shall be created using a Portable Document Format (PDF). It is highly recommended that users subscribe to Adobe Acrobat Pro DC, which costs approximately $15 per month per user.

All exhibits must be combined into a single PDF binder.

The file name of the binder shall be as follows:

Date of trial, followed by party designation, followed by binder number, and case number. For example:

Year, month, and day in 2 digits: 200701.Petitioners.Trialbinder.1.D20-24689

Page Breaks:

Trial binders must have page breaks between the exhibits. The page break shall have, at the bottom of the page in 24 point font the identification letter or number for the exhibits. For example, petitioner’s Exhibit 1 would appear as follows, center justified 2” from the bottom of the page:

Petitioner’s Exhibit 1

Exhibit Bookmarks:

Each exhibit must be bookmarked with the exhibit number, and a brief description of the exhibit. For example:

Exhibit 1: Wells Fargo statements 1/1/20 – 6/30/20 (Note: Descriptions of each exhibit in the bookmark should not exceed three lines).

Exhibit Lists:

Each party must submit an exhibit list with the exhibit binder. The exhibit list must have five columns. One column for the exhibit number/letter designation; one column for the description of the exhibit; one column for the PDF page number, and two empty columns for the parties to use at trial to mark during trial as “marked” and “admitted.” (Excel or Word is fine for this).

Rebuttal Exhibits:

Where practical, rebuttal exhibits should be created in a PDF binder similar to the process described above. Rebuttal exhibits, to the extent possible, should have a second rebuttal exhibit list. Rebuttal binders shall be designated in the same manner as the trial binder with the exception that the file name shall have added to it “.rebuttal.” For example:

200701.Petitioner.Trialbinder.rebuttal.1.D20-24689

Cross Examination Exhibits:

Cross examination exhibits not shared before trial shall be exchanged prior to cross examination, where practical, or used during examination by sending a copy to the opposing party during trial and sharing the virtual screen. Remember, the court controls its courtroom. Always ask the court for permission to share the screen. If you are sharing a screen, make sure that the only document on the screen is the exhibit intended to be shared, and used for cross examination. Note: Zoom lets you share a specific document, BlueJeans only lets you share the whole screen. Be aware of the limitations of the platform being used.

When appearing for a virtual hearing or trial, remember you are in a virtual courtroom. Dress appropriately for court, be in a quiet location, preferably your office, with the door closed and no ambient noise. Use a computer with a microphone and video camera. Attorneys should not use their cellular phones.

Redundancy:

Murphy’s Law: If something can go wrong, it will. Internet connections can fail, and urgent software programs can update at the wrong time (such as just before a hearing). Beyond the base computer and Internet system, all documents intended to be used should be a) saved to the desktop; 2) saved to a virtual folder; and 3) saved to your firm database. If you have the redundancy system set up and there is a failure of something, you can switch to a tablet or, as a last alternative, your mobile phone. For Internet redundancy make sure your computer can switch from your basic ISP to the 4G (or 5G) connection on your mobile phone.

Creating Exhibit Binders in Adobe – a Simple Approach:

Each exhibit should be created individually by exhibit number, for example:

  1. email dated…
  2. text message dated…
  3. photo of xyz

After the exhibit’s files are created, highlight all of the files, right click, and then click on the option to combine PDF. If the files are organized appropriately, they will self- bookmark with the appropriate exhibit numbers on the left column of the PDF.

Pro tip: The F4 key will open the bookmarks. You can drag and drop the bookmarks and change the designations as needed in the bookmark column.

Policy Recommendations:

Exchange and Lodging of Submission of Exhibits:

Exhibit binders and lists are to be exchanged five days prior to trial and lodged with the court using the following process:

  1. Exhibit binders and lists are to be served on the opposing party by Dropbox link, or any other agreed upon method of electronic document
  2. Exhibit binders and lists shall be lodged with the court by sending the clerk of the department a Dropbox link to the binder file (or any other form of electronic transfer allowed by the department clerk). Attorneys may sub- scribe to a free Dropbox account at dropbox.com.

Note: The State Bar of California Standing Committee on Professional Responsibility and Conduct issued in 2015, Formal Opinion Number 2015-193. That opinion, related to e-discovery, advises “[a]n attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.” That evolution is happening now. We must adapt and avoid being slammed into the rocks by Schumpeter’s gale.