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Virtual hearings are now more than a ‘remote’ possibility

 

For all the damage being wrought by COVID-19, the crisis has nevertheless highlighted humanity’s remarkable capacity for resourcefulness and adaptability. Some things that would have been difficult to even fathom in February have become practically routine in April.

So when Supreme Court Chief Justice Cheri Beasley issued orders closing most courtrooms across the state and allowing judges to hold some hearings via video and teleconferencing instead, many lawyers were initially unsure what it would be like moving from courtrooms to court Zooms. But a few weeks in, the new system is earning praise from many in the legal profession.

“We’ve done everything from minor settlements to fairly significant motions,” Wake County Superior Court Judge Graham Shirley said. “The requirement is that all parties have to consent, and everyone has to be able to see and hear each other.”

The pandemic has changed the way that North Carolina courts are operating from top to bottom, but even though the wheels of justice are now turning a bit more slowly, they haven’t stopped. Technology is allowing judges to open virtual courtrooms for many hearings, with people scattered, in some cases, across the country. Shirley recently presided over a hearing where an attorney was on his phone while in his car in Colorado.

“Another person was in a car and had a shower cap on,” said Shirley, who recommended that attorneys at least adhere to a business casual dress code when appearing “in court” via video.

In March Beasley and McKinley Wooten, the director of the North Carolina Administrative Office of the Courts, met via WebEX with court stakeholders across the state regarding the status of the courts, and Shirley and other judges are now using WebEX to conduct hearings. (While Zoom has become the go-to platform for much videoconferencing these days, some judges are declining to use Zoom for hearings because of its well-documented security concerns.)

Attorneys who have participated in the hearings say that there have been few glitches. 

“Honestly, I like them better than appearing in person,” said Glenn Page, a Raleigh attorney who has taken part in two remote hearings so far, both of which were in regards to minor settlements.

“The trial court coordinator is fantastic with setting up the calendar, and Judge Shirley sends out the calendar invite with the WebEX meeting link,” Page said. “Essentially, you hit the link, click the ‘join’ button, and that’s the end of it.”

He said the only caveat is that not all of his clients have internet access from their homes.

“Aside from that I would encourage any attorney to take advantage of remote hearings if it suited their case,” Page said.

Under Beasley’s order, if a criminal defendant’s right to confront witnesses or to be present is implicated by a proceeding that is to be conducted, then the defendant must waive any right to in-person confrontation or presence before the proceeding may be conducted remotely. If the proceeding is required by law to be confidentiality, then confidentiality must be maintained, and if the proceeding is required by law to be recorded, then it must be recorded. Finally, each party to a remote proceeding must be able to communicate fully and confidentially with his or her attorney.

When the levee breaks

Mary Webb, an attorney with Ragsdale Liggett in Raleigh, had a telephone hearing before a judge on a construction defect case that lasted more than three hours. The judge heard motions, and the hearing included more than 30 attorneys, the judge, clerk, and the court reporter. She also had a minor settlement hearing at which a mother and child attended remotely. Webb called the hearing “effective and efficient.”

“The mother was thrilled that she did not have to expose her five-year-old daughter to the court,” Webb said. 

Remote hearings are conducted similarly to traditional hearings, and Webb submitted documents to the judges via email beforehand. Her firm is encouraging all of their attorneys to participate in the remote hearings. 

“The only case we haven’t been able to do it involves a class action where we can’t reach pro se plaintiffs,” Webb said. “Most attorneys want to continue providing services to their clients and are pursuing it. I would recommend that we implement more remote hearings to improve efficiency. The platform that Wake County used was easy and can be completed with a laptop that has a camera.”

Shirley, too, wants more attorneys to participate in the remote hearings. The longer that the courts are mostly closed, the bigger the backlog of cases that is going to build up before traditional courtrooms can re-open for business.

“What we are creating is a huge dam, and as soon as the water is let out, attorneys are not going to get hearings as soon as they want to, because there are going to be other people in line for those hearings as well,” Shirley said. “Once we get back to business as normal, it won’t be business as normal. There will be a huge backlog. I understand there are people who don’t want to consent [to a remote hearing] but I think that people are being overly optimistic that they will be readily able to get a hearing.”

Follow Bill Cresenzo on Twitter @bcresenzonclw

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