PART II OF III: Remote Hearings in Florida
PENSACOLA, FL (May 28, 2020)
Under normal circumstances, legal proceedings necessarily involve groups of people gathering in public spaces in various sizes to facilitate the administration of justice. However, these are not normal times. Many Americans are continuing to work from home and practice social distancing in an effort to #flattenthecurve and reduce the spread of the COVID-19 virus. As a result of the public health emergency created by the COVID-19 pandemic and the state of emergency declared by the Governor of Florida, court facilities in Florida have been effectively closed to the public since March 13, 2020.
During this time, courts, counsel, and clients have adapted to new procedures and policies for conducting legal proceedings remotely. The Florida Supreme Court has issued numerous Administrative Orders governing the operation of the courts in Florida during the COVID-19 pandemic in an effort to keep the justice system operating to the fullest extent possible and prevent the delay of justice for litigants. It is the intent of these administrative orders to allow and encourage judges, court personnel (such as court reporters), and participants who can effectively conduct judicial business remotely to do so. For now, the only proceedings which are prohibited from moving forward are grand jury proceedings, jury selection, and criminal and civil jury trials, but this may be changing soon as will be discussed in the third installment of this series.
As a result, remote hearings and other court proceedings such as depositions and mediations have become the status quo. Florida courts are using the remote videoconferencing platform offered by Zoom to conduct remote proceedings. In our local practice area, we have held remote motion hearings and evidentiary proceedings where exhibits were presented and entered into evidence and witnesses provided sworn testimony before the court. For a typical hearing, the court will circulate a unique link for that particular judge prior to the hearing. Counsel, parties, and any witnesses will all be provided with this information and are instructed to call in several minutes before the hearing. When a participant calls in to the hearing, they will first be placed in a “waiting room,” and the judge must grant access to the hearing conference. During the COVID-19 pandemic, court reporters are permitted to swear in a witness remotely and attend a proceeding remotely as well. Once the participants are admitted to the conference, and the witness, if any, has been sworn in, the proceeding may begin. During the course of the proceeding, courts have the ability to place a participant, such as a witness, back into the virtual waiting room until it is time for their testimony.
Courts have taken several different approaches to the presentation of evidence and documents during remote proceedings. Counsel may be required to provide their exhibits via email to the participants prior to a hearing or deposition, or they may be required to file the exhibits in the court record. Screen sharing technology may be utilized in order to present evidence during a hearing or deposition. Best practices suggest that electronic documents to be used during a proceeding should be separated into individual exhibits rather than providing one large PDF document of all exhibits combined into one.
In general, remote proceedings have gone relatively smoothly so far. However, remote proceedings still raise a number of questions related to access to the courts, access to technology and reliable internet connections, notice of proceedings, and the ability of parties and the public to participate. Issues specifically related to access to the courts were discussed in detail in the first post of this series. During this time where remote proceedings have become the new normal, it is more important than ever that counsel and participants are prepared to use the technology before the hearing begins. Preparing for a hearing now may also mean that the court should be included to ensure that the judge, counsel, and all participants are aware of how the proceeding will take place.
While there is little dispute as to whether a party may be in the same room as their counsel if they so choose, questions related to whether a witness will be permitted to be in the same room or even the same office building as the attorney who has asked the witness to appear should be addressed prior to the proceeding. Similarly, attorneys should ascertain whether a deponent is in the room by themselves and ensure they have turned off and placed their cell phone aside during their testimony so that they cannot communicate with anyone else or otherwise be influenced during the deposition. Best practices suggest that witnesses and deponents not be permitted to use a virtual background. Opinions vary on the camera angle and whether the witness should be close to the camera so that others can clearly see their face and expressions or if the witness should be further back to ensure that both the witness and his or her surroundings are visible by all parties and participants.
Issues related to connectivity, audio and video quality, and procedures for when someone loses connection should be addressed. For example, parties should determine how to notify the court or court reporter if audio or video is lost and whether to continue a proceeding if a witness, party, or attorney loses internet connection.
On May 21, 2020, the Florida Supreme Court issued its second amendment to AOSC20-23 to extend, refine, and strengthen previously enacted temporary remedial measures. The May 21st amendment to AOSC20-23 establishes a four phase plan for the reopening of court facilities, but provides no timeline for moving from one phase to another. The phases addressed in the most recent amendment are:
- Phase 1 – in-person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare;
- Phase 2 – limited in-person contact is authorized for certain purposes and/or requires use of protective measures;
- Phase 3 – in-person contact is more broadly authorized and protective measures are relaxed; and
- Phase 4 – COVID-19 no longer presents a significant risk to public health and safety.
It is unclear if or when remote proceedings will become a thing of the past. It is most likely that courts will gradually ease back into in-person proceedings over time as social distancing measures are relaxed and court facilities are permitted to hold larger groups of people at a time. Criminal proceedings will generally take priority over civil proceedings when courts return to in-person proceedings. As we navigate the current pandemic, our office has evolved to ensure that we are able to effectively use of the technology offered by the courts, and we continue to pursue each of our client’ rights and interests through all means made available during the COVID-19 pandemic.
Cameron Townes Gore is an associate in the firm’s Pensacola office. Cameron’s practice primarily focuses on general litigation, construction litigation, and construction lien law. Contact Cameron at 850-208-7031 or email@example.com.
About Clark Partington:
Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee. The firm also maintains a presence in South Alabama with an Orange Beach office. Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law. Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom. More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.