What Were They Thinking? a Look at the Benefits and Pitfalls of Using Audio/video Platform in Hearings and Trials

• Publication year: 2021
• Author: Commissioner Michael Bishay

What Were They Thinking? A Look at the Benefits and Pitfalls of Using Audio/Video Platform in Hearings and Trials

Commissioner Michael Bishay

The Honorable Michael Bishay is a Superior Court Commissioner, currently assigned to Alameda County Superior Court's only dedicated family law settlement department. He is the past Supervising Judicial Officer of Family Law (San Bernardino county - high desert) and past Faculty Member of CJER which provides state-wide education and training to Judicial Officers. Prior to becoming a Commissioner, he was a board certified family law specialist. Commissioner Bishay also served as an FBI Analyst/Contractor with Top Secret Clearance, and as an Adjunct Professor of Law. Over the years, Commissioner Bishay has presented numerous lectures and written articles about a variety of family law and domestic violence topics.

Afew weeks ago, I heard about a doctor who appeared via Zoom for his traffic violation hearing while performing surgery on a patient. I wondered what this doctor was thinking. The same question comes to mind when parents decide to bring their minor children to watch their parents' family court disputes and listen to words that can inflict great harm to them.

When hearings and trials were conducted in person, the party's attorney, bailiff, or courtroom clerk ensured that a minor child was not present in the courtroom when the judicial officer took the bench unless that judicial officer previously permitted the minor child to be present to testify. Unfortunately, these filters do not exist when a child appears on everyone's screen unannounced during an audio/video platform hearing. Nor can the court control family, friends, and significant others' misbehavior that would have resulted in that person being escorted out of the courtroom prior to the inception of remote hearings. In this article I hope to address the steps litigants and attorneys must take to ensure a safe and beneficial audio/video remote hearing.

The court closure, caused by the COVID-19 pandemic, forced courts to think outside the box for options to connect judges, clerks, and court reporters to litigants and attorneys so hearings and trials can be conducted without having to wait until their doors reopen. While appearing by phone was an acceptable option for less critical hearings such as status conferences; the use of video platforms like Zoom or BlueJeans has become a viable option in enabling remote hearings and trials, while enabling a judicial officer to see the witness's facial expressions and body language during testimony to accurately assess that witness's credibility. And although courts are like huge ships that maneuver the waves slowly and carefully, these changes had to be implemented quickly. The courts' tech departments started upgrading networks and installing audio/video equipment in every courtroom. Rules and Forms Committees began drafting, vetting, and submitting new rules that permit the use of such technology. Many courts implemented this new technology in record time. Judges and Commissioners' home offices and lofts became courtrooms with a few simple clicks on their computers, and their computer screens became the window to litigants and attorneys, enabling them to once again bring their disputes before the court for timely adjudication.

The benefits were immediately seen by the bench, bar, and litigants even beyond the initial goal of restarting court operations: a litigant who did not have transportation was able to be present and participate in a court hearing through a smartphone or computer from the comfort of his or her own residence. An attorney was able to attend multiple hearings in different courthouses or different counties in a single day without even getting in the car. And judicial officers, clerks, and court reporters were able to circumvent all the challenges imposed by typical government protocols, rules, and regulations, resuming operations and becoming available...