Calif. Judicial Council Moves To Expand Remote Court Access

By Lauren Berg
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Law360 (September 25, 2020, 9:48 PM EDT) -- The California Judicial Council accepted a committee's recommendations Friday to look at expanding the use of video technology to allow parties, counsel and witnesses to appear remotely during most noncriminal court proceedings, as part of the council's effort to enhance access to justice.

Before the coronavirus pandemic hit and shut down the state's courts, the CJC's Information Technology Advisory Committee was already looking into how courts could expand the ability of plaintiffs, defendants, attorneys and witnesses to appear remotely during civil case proceedings.

But now, an expansion of video appearances could help Golden State courts that have been closed to most of the public under emergency orders following the spread of COVID-19 conduct business, the committee said.

The ITAC tasked a Remote Video Appearances Workstream with looking at the feasibility of adopting video technology for remote appearances and to make recommendations for statewide expansion. During a meeting Friday morning, the workstream told the council their recommendations for the first phase to broaden the adoption of video and digital court appearances.

When conducting its study and writing its report, which was authored before COVID-19 hit, the workstream's guiding principles were to enhance the public's access to justice by making it easier for people to attend hearings; to preserve litigant rights and make sure video appearances wouldn't benefit or disadvantage either party; to ensure the dignity and integrity of the court process; and to not over-complicate things to avoid burdening the parties or court.

Los Angeles County Superior Court Judge Samantha P. Jessner, a member of the remote workstream, told the council that the committee read reports from courts that have already implemented remote appearances via video and tried to brainstorm and debate the potential issues of video appearances.

Judge Jessner said the workstream even held mock hearings for a small claims case and a civil harassment case with the parties connecting remotely from different cities in California to a courtroom in San Bernardino to see how well the hearings could be conducted.

According to a survey conducted by the workstream, the majority of participants were "very satisfied" with the remote video appearance mock hearings and said it was either "easy" or "very easy" to connect to the hearings. The majority of participants also said the video experience was "extremely convenient."

The participants left suggestions, including that courts provide a way for all parties to see one another, to make sure only one person speaks at a time and to figure out how exhibits can be displayed and shared.

Based on its study and report, the workstream recommended that the committee pursue an amendment to the Code of Civil Procedure Section 367.5 to make the authorization for video or digital appearances consistent with those made via telephone. The workstream said the provisions for video should generally parallel those for telephone appearances, but shouldn't create a presumptive authorization for video appearance.

"Because of the infancy of the video appearance process, the workstream prefers to leave the option to offer these types of appearances to the local jurisdiction," the report said.

The workstream recommended that the ITAC adopt a new rule of court that provides guidance for video or digital appearances, similar to the existing guidance for telephone appearances, according to the report. The workstream also recommended a rule amendment allowing video appearances in family law proceedings.

The workstream also said the committee should provide guidance to early adopters of video appearances and allow them flexibility while they figure it out, according to the report.

During Friday's meeting, the workstream members told the council the next step is to start exploring the use of video appearances for criminal proceedings, to identify scenarios in which courts would use video over other types of appearances, and even to think about how courts can accept, transmit and store evidence digitally.

Orange County Superior Court Judge Sheila F. Hanson, chair of the ITAC, said the workstream hasn't been able to explore these questions yet because of the pandemic, but noted that these past several months will give them valuable information.

Heather Pettit, the California Judicial Council's chief information officer and director of technology, said the committee started to find funding to roll out pilot programs, but when COVID-19 hit the plan went out the window. She said the committee passed out a survey, which 31 trial courts answered, and found that 52% of those courts were using some kind of remote video for court proceedings during the pandemic.

Pettit said the committee will need to adjust some things but plans to launch additional pilots.

--Editing by Breda Lund and Emily Kokoll.

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