January 11, 2022
The “Do’s and Don’t’s” of Virtual Hearings
BY: Howard Bullock & Shannon Kapadia
Introduction:
The COVID-19 pandemic brought on many new challenges for lawyers, judges, and courtroom staff. One challenge in particular was mastering the art of videoconferencing. In January of 2020 the Virginia Supreme Court adopted Virginia Supreme Court Rule 1:27, which governs the use of testimony by audiovisual means in Circuit Court for civil cases. There have also been a number of statutes passed which govern virtual hearings in criminal cases and in General District Court.[i] These rules and statutes govern the admissibility and procedural aspects of remote hearings practice in Virginia.
10 Tips:
- Triple check your technology including your microphone and mute functions.
- Judges have frequently complained about attorneys who forget to mute their microphones when they are not speaking.
- Check your internet connection.
- A weak internet connection can distort your voice and picture. Test your internet connection instantly by visiting speedtest.net.
- Eliminate all distractions prior to the hearing, including pets.
- Barking dogs, cats meowing excessively, or loud lawn mowers can distract other attendees who are listening to you.
- Prepare to have your camera on.
- Even if the hearing is audio-only, you should be prepared to turn-on your camera. Ensure your camera and lighting are good quality.
- Dress like you are in a physical courtroom.
- Just because you are not there in person does not mean people won’t be able to see what you are wearing. Wear a tie, jacket, or professional blouse rather than “work from home” loungewear that may look unprofessional.
- Ensure your background does not contain offensive or distracting imagery.
- Do not wait until the last minute to arrange for a remote hearing.
- Speak with opposing counsel as far in advance as possible to get their consent for the virtual hearing. This ensures that you have time to work out the practical aspects of virtual testimony such as entering exhibits or making certain documents available to the witness to testify about.
- Speak with the Clerk’s office as far in advance as possible about what you need to file in order to have the Judge approve the virtual hearing. Ask what technology platform that particular Court utilizes. You will likely be required to file a Motion for Remote Hearing beforehand. Many Courts have a preset form for this Motion that you can fill out.[ii] When drafting your Motion, be sure to provide the proposed witness’ contact information, so that the Clerk’s office can contact the witness to provide instructions for the remote hearing.
- If requesting a video hearing, be aware that most Courts utilize the “WebEx” platform. Typically, after the Judge approves the Motion for Remote Hearing, the Clerk’s office will provide instructions for logging into the platform at the time of the hearing. Be sure to check with the Clerk’s office to confirm, as each locality may have different procedures or available technology.
- For civil hearings, the Rule requires that if opposing counsel does not consent to remote testimony, a Motion for Remote Hearing be filed at least 60 days in advance of the trial or hearing, unless the Court allows the motion on shorter notice.[iii]
- Prepare your clients and witnesses by testing their technology. Consider having a “test” run-through with them a few days before the hearing.
- Consider whether you will need to show documents during the hearing and mark exhibits. If so, use appropriate technology or a court reporter. Ensure that you have done a practice videoconference with them.
- For civil hearings, where opposing counsel does not consent to remote testimony, there are different standards that the Court applies in deciding whether to grant the Motion for Remote Hearing. The appropriate standard often depends on the witness. For example, where the proposed testimony is from a non-party lay witness, the movant need only show good cause for the witness to testify via audiovisual means.[iv] However, if the proposed testimony is from a party or expert witness, the movant must show that exceptional circumstances warrant the Court receiving the testimony by audiovisual means.[v] In either event, the Rule states that the Court, in deciding the motion, should consider “whether the ability to evaluate the credibility and demeanor of the person who would testify remotely is critical to the outcome of the proceeding and whether the non-moving party has demonstrated the face-to-face cross-examination is necessary because the issue(s) the witness may testify about may be determinative of the outcome”.[vi]
Conclusion:
The key principle with attempting to utilize remote testimony is to plan ahead. Do not wait until the last minute. This will allow you to speak with opposing counsel well before the hearing and attempt to work through issues they may have with the proposed remote testimony. This will also give you enough time to file a Motion for Remote testimony and have a hearing, if necessary, well before trial. Finally, early planning will allow you to effectively coordinate with the Clerk’s office, your witnesses, the court reporter, and other interested parties to work out any technological issues associated with technology in the courtroom.
Endnotes:
[i] Va. Code Ann. § 16.1-93.1 (2020); id. § 16.1-276.3 (2020); id. § 17.1-513.2 (2020).
[ii] Motion for Remote Hearing
https://www.vacourts.gov/news/items/covid/2020_0518_hampton_gd_remote.pdf (last updated April 16, 2020)
[iii] VA. R. SUP. CT. R. 1:27(d) (2020)
[iv] Id. R. 1:27(d) (1) (2020)
[v] Id. R. 1:27(d) (1) (2020)
[vi] Id. R. 1:27(d) (2020)