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Lawyers weigh in on continuing remote proceedings

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Jorge Piedra

Jorge Piedra

A Florida Bar survey suggests that most members would prefer conducting routine and non-evidentiary proceedings remotely after the COVID-19 pandemic subsides, but not trials.

“We had a very healthy response,” said board member Jorge Piedra, who chaired a COVID-19 Pandemic Recovery Task Force subcommittee that produced the survey. “I was pleased with the return, not surprised by the results, and I think it’s very, very useful information for the courts and everyone else to use a road map to proceed.”

The survey was emailed to 3,758 Bar members from January 13-27 and nearly 1,300 were returned for a 34% response rate, which is considered robust.

“The survey generally demonstrated that a great majority of practitioners prefer to continue conducting routine and non-evidentiary matters within their practice area via Zoom or other similar virtual platforms,” Piedra wrote in his final report. “However, practitioners would prefer to return to in-person proceedings for evidentiary hearings and trials.”

Nearly three-fourths of respondents, 73%, expressed support for developing an online platform for the resolution of civil monetary disputes involving less than $1,000.

A breakdown shows that 74% of responses were from lawyers in private practice, 15% were employed by government, and 11% identified as “other.” An overwhelming majority, 80%, reported that their practice, at least occasionally, involves court proceedings.

The report also concluded that the survey results “are consistent” with a pandemic-related proposal by the Rules of Judicial Administration Committee to amend Rule 2.530 (Communications Equipment).

The proposed amendments would add a definition for audio-video equipment and permit the use of audio or audio-video technology on the request of a party or in the court’s discretion for non-evidentiary proceedings.

The proposed changes would also allow parties to object to the request, but the court could use its discretion to overrule the objection. The proposed rule would also permit the taking of testimony in evidentiary proceedings pursuant to a motion, and for good cause. The proposed rule would set forth various factors to be considered as good cause. The proposed rule would also provide for the swearing-in of witnesses through audio-visual communication.

“The subcommittee believes the intent of the proposed rule changes are consistent with the survey results, which generally favor remote proceedings for non-evidentiary matters but disfavor remote proceedings for evidentiary matters,” the report states. “However, we urge the Rules of Judicial Administration Committee to undertake a careful review of any comments or suggestions to the new proposed rule in order to simplify and clarify the proposed changes and make them easier to follow and more consistent with other rules.”

RJAC is expected to weigh the proposed amendments at a June meeting. Final approval would be up to the Supreme Court.

The survey responses, broken down by practice areas, show:

• Civil Proceedings: Of those applicable respondents who participate in civil proceedings, more than three-quarters report that calendar call/sounding (85%) and motion calendar (79%) should continue via Zoom video conference or similar platform. Over two thirds (68%) report that non-evidentiary special set hearings should continue via Zoom video conference or similar platform. Less than a third report that bench trials, evidentiary special set, voir dire, and jury trials should continue via Zoom video conference or similar platform.

• Traffic Proceedings: Of those applicable respondents who participate in traffic proceedings, more than three-quarters (79%) report that pre-trial hearings and arraignments should continue via Zoom video conference or similar platform. Slightly more than half (51%) report that final hearings or trial should continue via Zoom video conference or similar platform.

• Appellate Proceedings: Of those applicable respondents who participate in appellate proceedings, nearly half (47%) report that oral arguments should continue via Zoom video conference or similar platform. Of the group who gave a conditional “yes,” most felt the courts should allow a virtual or live option, depending on whether the default method is virtual or live. Some thought the virtual option should be available only if the parties agreed, and a few thought it should only be allowed if special circumstances make it difficult for a party to appear in person, or if appearing in person would unduly delay the case.

• Family Law Proceedings: Of those applicable respondents who participate in family law proceedings, slightly more than three- quarters report that uncontested final hearings (76%) and case management conferences, status conferences and pre-trial conferences (76%) should continue via Zoom or similar platform. More than half report that motion calendar (68%) and non-evidentiary special set hearings (61%) should continue via Zoom video conference or similar platform. Fewer than half report that temporary relief (40%), return hearings (33%) and evidentiary special set hearings (24%) should continue via Zoom video conference or similar platform. A small percentage of respondents thought virtual proceedings should continue only under certain conditions, such as when the parties agree. Others thought that parties would refuse to agree to virtual proceedings as a means to delay and hoped procedure would permit parties to object only if they could show prejudice. Several respondents were concerned about virtual proceedings when credibility is an issue. As one respondent put it, face-to-face contact is crucial to overcoming local biases because it is harder to look away from victims in that setting.

• Criminal Proceedings: Of those applicable respondents who participate in criminal proceedings, more than half report that calendar call/sounding (68%) and arraignments (61%) should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person proceedings, with additional respondents (4%-6%) favoring the continuance of virtual hearings under certain conditions. More than half report that non-evidentiary hearings (52%) and bond hearings (52%) should continue on Zoom or a similar platform after it is deemed safe to resume in-person hearings, with additional respondents (7%-11%) favoring the continuance of such virtual hearings under certain conditions. Less than one-quarter report that probation violation hearings (23%), bench trials (18%), evidentiary hearings (12%), voir dire (6%), and jury trial (4%) should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person hearings, with a small minority of respondents (3%-10%) favoring the continuance of such virtual hearings under certain conditions.

• Juvenile Proceedings: Of those applicable respondents who participate in juvenile proceedings, about two-thirds (66%) report that calendar call/sounding should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person hearings, with an additional 2% favoring the continuance of such virtual hearings under certain conditions. More than half report that non-evidentiary hearings (53%) and arraignments (52%) should continue via Zoom video conference or similar platform once it is deemed safe to resume in-person hearings, with an additional 2%-4% favoring the continuance of virtual hearings under certain conditions. Less than one-third report that probation violation (27%), evidentiary hearings (18%), bench trials (18%), voir dire (11%), and jury trials (6%) should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person hearings, with an additional minority (4%-8%) favoring the continuance of such virtual hearings under certain conditions.

• Probate Proceedings: Of those applicable respondents who participate in probate proceedings, more than two-thirds (71%) report that all routine and procedural hearings should continue via Zoom video conference or similar platform after it is deemed safe to return to in-person hearings. More than half (60%) report that petitions for approval should continue via Zoom video conference or similar platform after it is deemed safe to continue in-person hearings. Less than half report that guardianship appointments (46%), incapacity hearings (32%) and contested final hearings (20%) should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person hearings.

• Small Claims: Of those applicable respondents who participate in small claims proceedings, four-fifths (80%) report that pre-trial conferences should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person hearings. Less than one-third (29%) report that trials should continue via Zoom video conference or similar platform after it is deemed safe to resume in-person hearings.

• Administrative Proceedings: Of those applicable respondents who participate in administrative proceedings, more than three-quarters (79%) report that pre-trial conferences should continue via Zoom video conference or similar platform. More than two-thirds (71%) report that motion hearings should continue via Zoom video conference or similar platform. Less than one-third (32%) report that final hearings and trials should continue via Zoom video conference or similar platform once it is deemed safe to return to in-person hearings.

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