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Tech Committee shops around its recommended best practices for remote legal proceedings

Senior Editor News in Photos

Jay KimThe Board Technology Committee has decided to seek input from Bar sections and others before releasing a set of recommended best practices for remote legal proceedings.

At a December 3 meeting, Chair Jay Kim argued for posting the best practices as soon as possible to help Bar members who have been struggling to adapt to the surging COVID-19 pandemic.

“The intent right now is not to force it on anybody, that’s why it’s being put out there as best practices,” Kim said.

But the committee agreed to seek more input after discussing a request for a series of changes that was submitted shortly before the meeting by a group that represents Florida court reporters.

“This isn’t going to be done by tomorrow,” Kim acknowledged. “We’re going to have to work on it.”

The recommended best practices will be submitted to the Board of Governors at a December 4 meeting for preliminary review, then forwarded to Bar sections, divisions, and judicial conferences — with a request for comment by January 20.

The Board of Governors will then be asked to accept a final version at a January 28 meeting. The recommended best practices will likely be posted on the Bar’s COVID-19 Information and Resources webpage after that, Kim said.

Among the court reporters’ concerns was a section of the proposed best practices that deals with video recordings. The group said it fails to clearly define the differences between a videographer and a stenographer.

“Reporters and videographers provide different skilled functions in the deposition and record-making process,” the group wrote.

Page GreenleeCommittee member Paige Greenlee said she agreed with at least some of the group’s concerns.

“Many of them are valid, some of them I don’t necessarily agree with,” Greenlee said. “I think there’s a balance we can strike.”

Highly comprehensive but videoconferencing platform agnostic, the preliminary practices cover more than eight pages and are divided into five numbered sections:

• Remote Procedures Applicable to all Proceedings.

• Remote Procedures Applicable to Non-evidentiary Hearings.

• Remote Procedures Applicable to Evidentiary Hearings.

• Remote Deposition Procedures.

• Remote Mediations.

They recommend everything from appropriate attire and proper lighting to screen sharing and methods for evidence sharing.

Section 1.6 reads, in part, “Requests for continuances based solely on a participant’s preference to wait until the court event can be conducted in person are disfavored, and will be considered only under extraordinary circumstances.”

Kim said he would like to see the guidelines stress the need for lawyers to uphold a higher standard of professionalism when participating in online proceedings.

For example, Kim said, a lawyer should be obliged to alert an opponent that he or she is accidentally revealing confidential information when using a screen-sharing function, or alert a judge to an opponent’s objection when the opposing attorney forgets to “unmute.”

“I think there should be a heightened standard of good faith,” Kim said.

President-elect Mike Tanner said that circulating the proposed practices to other Bar sections will give them greater weight and increase the likelihood that they will be widely adopted.

“I would like to put it out there as a best-practices recommended by the Bar,” Tanner said.

President Dori Foster-Morales, who monitored the committee meeting, said she agreed.

“That makes sense…it will probably last for many years to come,” she said. “I know you’re anxious to get it out, but thanks for your patience.”

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