A new announcement from the Supreme Court of Virginia could open doors for remote hearings to keep litigation moving during the COVID-19 pandemic.
The Chief justice of the Supreme Court says judges may, in their discretion, conduct any civil or criminal matter by electronic audio-visual communication with the consent of the participants.
The guidance in an April 10 memo may eliminate hesitation on the part of some Virginia trial judges to schedule remote hearings in non-emergency matters during the COVID-19 outbreak.
Some judges – interpreting judicial emergency orders from the Supreme Court – had declined to schedule any hearings on proceedings that were not deemed urgent. The near-shutdown of the judicial process left attorneys frustrated that even routine non-evidentiary matters could not be resolved through a video or telephone conference with the court.
The April 10 memorandum did not address public access to hearings that are conducted with audio-visual remote communication. A high profile hearing in a lawsuit seeking an exemption to the governor’s stay-at-home order for religious services was held by teleconference April 9 without access for the press or public.
The court’s April 10 memorandum was directed to “All Judges and Clerks.” Lemons said court officials had fielded numerous calls and emails about the court’s two COVID-19 orders.
“Like many of you, we are concerned about the growing backlog of your court dockets; however, we are more concerned about the safety of court personnel, litigants, and lawyers,” Lemons wrote.
“To the extent authorized by law and with the consent of all parties, attorneys and witnesses, a court may, in the exercise of its sound discretion, conduct any civil or criminal matter by two-way electronic audio-visual communication system using a secure communication platform such as Polycom or Web Ex, or by telephone,” the memo said.
The memo also approved juvenile licensing ceremonies using the same A/V technology.
“In any matter heard or considered and any ceremony conducted, either by secure two-way electronic audio-visual communication or by telephone, the court shall prohibit in person gatherings of 10 or more individuals at any remote site(s) or site(s) where social distancing cannot be enforced,” the memo said.
The memo recommended the use of WebEx as it is licensed with technical support available. The court’s IT department discouraged the use of Zoom because of “documented security vulnerabilities when the product is not set up and used correctly.” If a trial court wished to continue use of Zoom, the memo recommended a number of security settings.
Legislators and lawyers who pressed for guidance on moving non-emergency cases were relieved to see the memo.
Sen. Scott Surovell, D-Mount Vernon, called the court notice an “excellent first step to get some of the backlog moving,” allowing non-evidentiary motions, agreed dispositions, and pleas. But he said there’s more work to be done.
“Given we won’t have a vaccine until January and robust testing to get 8 million Virginians tested any time soon, I’m very concerned about how we honor social distancing while conducting jury trials or move large dockets,” Surovell said.
He referred to busy Fairfax County court sessions like traffic court, first returns and Friday motions.
“This crisis is going to require major procedural changes going forward that we will have to deal with circuit by circuit,” Surovell said.
Sen. J. Chapman Petersen, D-Fairfax County, also welcomed the clarification, saying he was confident courts would adopt quickly.
“The civil justice system must continue to function, if our economy is going to function. Period,” Petersen said.
Representatives of Virginia trial lawyers and the civil defense bar recently issued a joint letter urging litigators to cooperate on the use of technology to move cases forward. The court’s April 10 announcement will help, they said.
“Our members and their clients are very encouraged by the Supreme Court’s latest guidance. Any opportunity to get Virginia’s judicial system back on track without compromising public safety and health is greatly appreciated,” said Mark Dix of the Virginia Trial Lawyers Association.
Melissa H. Katz of the Virginia Association of Defense Attorneys said she was very encouraged by the Lemons memo.
“Since we can’t expect that our court system will magically normalize when the governor’s temporary stay is lifted, it is imperative that judges and attorneys adapt and work together to embrace new methods of dispute resolution,” Katz said. COVID-19 has accelerated the necessity of learning new technological skills to keep the justice system moving, she added.
“While this may be daunting for some, even without use of audio-visual conferencing through Web-ex or a secured Zoom site, the show can still go on through the more traditional telephonic conference, as suggested in the Virginia Supreme Court memo,” Katz said.
Matthew W. Broughton, who wrote a guest column for VLW urging creativity from lawyers and courts to keep the work moving, called the Lemons memo a “prudent and helpful step.”
“At this point, none of us know how long the restrictions caused by this pandemic will last. However, Justice Lemons effectively alleviated the road block I referred to in my previous opinion letter regarding the knee-jerk reaction ‘that’s not the way we usually do things.’ His direction encourages us all to embrace technology, be creative, and be cooperative with one another and the Court,” Broughton said.
Megan Rhyne of the Virginia Coalition for Open Government said she hopes courts will address the requirement of public access to court hearings.
“Access to court proceedings (not involving juveniles) is largely guaranteed by the constitution, and to me that means the public should be made aware of and have the opportunity to observe hearings or proceedings they would otherwise have had access to if held in open courtrooms,” Rhyne said.
Updated April 13 to add a link to the memo and to add Rhyne’s comments.