Court Online: Virtually Normal

• Author: Mark A. Flores
• Pages: 14-15

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Identifying When Vir tual

Proceedings May Be

Appropriate

The New Jersey Supreme Court’s order

sets forth several new parameters. First

and foremost, judges will have the dis-

cretion to conduct court proceedings

virtually or in person moving forward

in generally all civil matters and certain

criminal proceedings. However, some

prescribed categories will default to

one format or the other.

For example, unless an individual

party can present facts and circum-

stances that would otherwise require

an in-person hearing, the following

matters will be handled virtually: rou-

tine motion arguments, criminal initial

appearances, hearings involving crimi-

nal defendants already in state custody,

small claims trials, uncontested guard-

ianships, uncontested divorces, and

other routine civil hearings.

By contrast, criminal jury trials will

proceed in person, while appellate

arguments, sentencing hearings, juve-

nile delinquency proceedings, eviden-

tiary hearings, and other non-routine

proceedings will generally proceed in

person unless all parties consent to a

virtual hearing.

The court explained that it con-

sidered both the pros and cons for

litigators, parties, and jurists in

categorizing types of proceedings.

Although virtual hearings can some-

times result in reduced time and cost,

as well as “fewer scheduling conicts

and requests for continuances,” the

court noted that key stakeholders have

pointed to the importance “of bring-

ing parties together in person at certain

critical junctures, including settle-

ment conferences and proceedings that

involve especially serious penalties or

consequences.”

Recognizing the competing inter-

ests and “the evolving nature of court

operations,” the court noted it will

review the provisions of the order mov-

ing forward.

Increasing Access Through

Virtual Pr oceedings

Litigation Section leaders see the New

Jersey framework as a blueprint for

expanding virtual proceedings nation-

wide, which may come with several

advantages. For example, Rachel

Pereira, Washington, DC, cochair of the

Section’s Access to Justice Committee,

believes virtual judicial proceedings

have opened up access to proceedings

for a segment of the population that

might otherwise have difculty getting

to the courthouse.

“Videoconference and remote court

proceedings have benet,” Pereira

asserts. “Remote proceedings allow

people to participate without having

to take time off work and allow low-

income litigants with commuting issues

or child-care issues to be able to have

greater access without the burden that

would have been caused otherwise.”

However, Pereira notes that the expan-

sion of virtual proceedings presupposes

that the litigants and parties have access

to a stable internet connection and tech-

nology, which could prove expensive. She

proposes that courts consider providing a

“hotspot system” or some other technol-

ogy that individuals can borrow to access

a judicial videoconference. “I’m not a

technology guru,” Pereira remarks, “but

if libraries can loan computers to people,

certainly courts can do it.”

Other Section leaders agree that

allowing courts more exibility to uti-

lize virtual proceedings will increase

citizen access to the judicial system

under the right circumstances. “I

anticipate that courts will continue to

offer virtual hearings and trials as an

alternative—rather than as the sole

option—even when regular in-person

proceedings resume,” predicts Adrian

K. Felix, Miami, FL, cochair of the

Court

Online:

Virtually

Normal

By Mark A. Flores, Litigation News

Associate Editor

© Getty Image s

fter more than 260,000 virtual

court events involving more

than 2.7 million participants

conducted during the COVID-

19 pandemic, the New Jersey

Supreme Court has decided

that the “framework for the future of

court operations” is online. The court

recently issued an order outlining the

ways in which technology can “provide

expanded options for access, partici-

pation, timeliness, and justice.” ABA

Litigation Section leaders predict that

courts will begin to adopt similar

positions across the country, and that

virtual proceedings—with all their

benets and pitfalls—will become part

of every litigator’s day-to-day practice.

14 | LITIGATION SECTION