New Jersey’s state court system has reacted repeatedly – and aggressively – to keep the proverbial courthouse “doors” open during the COVID-19 outbreak, even though the court buildings, like most of the rest of the heavily impacted Northeast, are themselves closed. The latest omnibus order from the Chief Justice of the Supreme Court, entered on April 24, 2020, has continued the suspension of jury trials through May 31, 2020. However, the vast majority of other proceedings are continuing, via remote appearances, including motion hearings, status conferences, and other proceedings. Depositions, although not required to be taken remotely, are being encouraged to be taken in this fashion. The order also indicated that the Judiciary and certain stakeholders would be meeting to explore the potential options for conducting virtual grand jury selections and sessions. As the legal profession and impacted industries confront this potentially brave new world, it’s worth noting that the concept of appearing remotely for trial is not a new – if relatively undiscussed – reality for New Jersey courts.
In January of this year, the Appellate Division published a decision dealing with remote testimony in a matrimonial action. The plaintiff in that action filed for divorce, and but moved to India before trial. A week before trial, the plaintiff advised the court that plaintiff could not obtain a visa to return to testify, and asked for leave to appear remotely. The Appellate Division reviewed the trial court’s denial of that motion on an emergent basis, noting preliminarily that “[o]ur court rules do not provide for testimony by way of contemporaneous video transmission, but they don’t prevent it either.” Pathri v. Kakarlamath, 2020 N.J. Super. LEXIS 6, at *2 (App. Div. Jan. 23, 2020). Although certain witnesses are commonly presented at trial by way of video-recorded testimony, or in rare instances, telephonic testimony, the case law defining the contours of when live testimony could be taken remotely was decided in 1988 – decades before the modern era of instantaneous video communication was upon us.
Thus, the Appellate Division took the opportunity – presciently, given the circumstances we find ourselves in presently – to re-define the standard for contemporaneous video testimony from a remote location during trial. Courts must consider the following factors, when considering applications to present remote live testimony:
the witness’ importance to the proceeding;
the severity of the factual dispute to which the witness will testify;
whether the factfinder is a judge or a jury;
the cost of requiring the witness’ physical appearance in court versus the cost of transmitting the witness’ testimony in some other form;
the delay caused by insisting on the witness’ physical appearance in court versus the speed and convenience of allowing the transmission in some other manner;
whether the witness’ inability to be present in court at the time of trial was foreseeable or preventable; and
the witness’ difficulty in appearing in person.
The first element requires the court to consider whether a witness is of particular importance in the dispute at hand. If so, the party seeking to have the witness testify remotely has a higher burden to excuse that person’s live testimony. If the witness is of “relatively minor importance,” or a records custodian, the burden “ought not be onerous.” In similar fashion, the second element requires judges to consider whether the proffered testimony would be addressed to any “sharply disputed question of fact, something that goes to the heart of the matter.”
Importantly, the third factor for the court to consider is whether the trial at hand is a jury trial or a bench trial. The assumption is that judges are better able to overcome barriers to ascertaining witness credibility and demeanor than are juries, who are not accustomed to weighing testimony. This would militate against remote appearances in the vast majority of civil cases, although it is only one of several factors.
Fourth, the courts should weigh the costs that would be required for the witness to appear in person, as opposed to the cost of contemporaneous video transmission. Permissible costs to consider in this instance would include travel and lodging expenses necessarily incurred, as well as lost income due to missing time from work. Courts are also to consider delays to the case’s disposition. “In fairness, a judge should consider the scheduling of a trial date that does not cause an undue economic impact on the witness while traveling to and from and testifying in New Jersey.” If this fairness would cause significant delays, it would weigh in favor of permitting remote testimony. Courts should also consider what circumstance is requiring remote testimony, and whether it was foreseeable.
Lastly, courts should consider the witness’ claimed difficulty in attending in-person. In Pathri, the witness resided in India and claimed to be unable to obtain a visa to return to the United States to testify. Difficulties of that nature strongly weigh in favor of remote appearance, but the court cautioned that this issue alone is not dispositive. The Appellate Division cautioned that “the court rules are to be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” The Court further noted that “in most cases, it would be hard to imagine that the fair application of these principles would lead to a trial that lacks a party’s testimony rather than contains that testimony in a less than desirable form.”
As New Jersey’s state courts continue to adapt to the COVID-19 outbreak through the summer, these principles should be kept in mind as the courts begin to resume jury trials. For more information on this topic, please contact MKCI’s Tom Emala at firstname.lastname@example.org.