Skepticism About Virtual Motion Hearings

From Full Circle of Living and Dying v. Sanchez, decided earlier this month by Kimberly J. Mueller (E.D. Cal.), denying the parties' joint request to conduct a Final Pretrial Conference remotely:

The court strongly prefers in-person oral argument for its civil law and motion calendar. Attorneys appearing in person are often better prepared, more professional and answer the court's questions more thoroughly, without talking over others. Although the court has previously accepted stipulations for virtual appearance due to the exigencies of the COVID-19 pandemic, as the court has transitioned out of a state of emergency, the court has returned to many of its prior protocols.

The court acknowledges that remote appearances can be useful, as they reduce cost and burden for parties. But the court will no longer routinely grant these requests. Virtual appearance is discouraged.

Nevertheless, the court will consider requests for virtual appearance if supported by a showing of true hardship, such as health concerns or an unreasonable increase in litigation costs. Any requests to appear remotely at a hearing must be in writing, must either be stipulated to or explain the other side's position and must be filed no later than seven calendar days in advance of the noticed hearing date. In the event a virtual appearance is approved, attorneys are expected to conduct themselves as if they were present in the courtroom: they must be in court attire and fully prepared to answer the court's questions.

This isn't the universal view among courts, and I'm not sure it's the right view; but it struck me as an important position, and worth passing along.

Comments

[nystateofmind]

As someone who mainly does state level litigation, I really like virtual appearances. It is a giant waste of time to appear in Court for a scheduling conference when I may have one matter on and my adversary is jumping between multiple different courtrooms so trying to pin that person in one place when the Judge or a Law Secretary is free is more challenging. By having virtual appearances that are appropriately spaced you do not need everyone on a calendar showing up at one time just so hopefully one case can everyone there when it starts. The talking over is usually a symptom of not understanding the software and a simple admonishment will do. If anything I have found attorneys BETTER prepared in virtual appearances because they can have the entire file at their fingertips or, in some cases, have a client or a colleague present who can feed answers when an attorney is uncertain about a detail. I would rather have that and get the facts correct than a Judge winging a decision from the bench because someone "accidentally" misstated a fact.

[Bored Lawyer]

After 25 years of practice, I have to conclude that judges are both lazy and clueless.

Before COVID, for many judges, an oral argument meant spending an hour to get to court, listening to 10 other arguments at a cattle call, 20 minutes of arguing my motion, and then an hour to get home. Easily waste an afternoon for 20 minutes of argument.

A virtual appearance reduces that to about half an hour -- 10 minutes of lead time and a 20 minute argument.

In terms of efficiency, the latter is far more efficient and cost saving for the litigants.

"Attorneys appearing in person are often better prepared, more professional and answer the court's questions more thoroughly, without talking over others."

As far as talking over others, a little control by the judge -- such as giving each side 5 or 10 minutes, works wonders. The rest is not my experience. You want to put your best foot forward when arguing a motion for the client.

Question for this judge: How much better is in-person argument over virtual argument? Is the marginal gain worth the extra hours of billing time for each side, and adding to the general inefficiency of litigation?
True, you have to manage your own docket efficiently, and get your clerks to use Zoom or the phone for appearances. Seems like a small price to me.

[David Nieporent]

As far as talking over others, a little control by the judge — such as giving each side 5 or 10 minutes, works wonders. The rest is not my experience. You want to put your best foot forward when arguing a motion for the client.

If it's a phone conference, talking over each other (inadvertently) from time to time is unavoidable; it's the nature of the technology. You don't know whether someone is pausing or done. (For argument, I mean. For scheduling conferences, it shouldn't be an issue.)

[Bored Lawyer]

With proper management, it can be minimized. The judge just has to be on top of it.
In my experience, talking over is a minor problem in both live and virtual appearances. And I don't think virtual is noticeably worse.

[Rossami]

re: "You don’t know whether someone is pausing or done."

True over the phone. Also true in person. Yeah, you get some non-verbal clues in-person but people still make mistakes. Good people deal with those mistakes with grace and courtesy. And bad ones aren't dissuaded by the non-verbal clues. I concur - that line comes across as a judge whining about having to do his damn job.

[David Nieporent]

I have no objection to this for hearings on actually contested issues (and, of course, trials). I’m not sure strictly speaking that they’re always necessary for contested hearings, but I can understand the appeal.

But for routine conferences, it is unconscionable that just because judges like the pomp and circumstance¹ that they want to waste so many other people’s time. I practice in federal court where the procedures are very different than in state court (especially if you’re in NY, as your screen name implies). We have individually scheduled conference times rather than cattle calls, and the conferences actually take place at those times. But even so, it’s often a 2+ hour round trip for a 5-10 minute conference. (Pre-covid, I once had a 10 minute conference in Central Islip — motto: if we have to be exiled out here, you have to suffer to — and it was a 4+ hour round trip.)

¹I had one federal judge, who I actually really like, explain to me (paraphrased), “I worked really hard to get this robe and this courtroom, and sitting there by myself and talking into a speakerphone or a Zoom screen just doesn’t feel satisfying.”

EDIT: That was supposed to be a response to nystateofmind.

[nystateofmind]

I figured that was meant to be a reply to me. In my career I have appeared in SDNY and EDNY so I know things run differently there as far as scheduling. It is still a hassle especially if the Judge is not on time or running behind schedule due to delays earlier. I know an attorney who ended up 10 minutes late because of traffic and was still the only one who showed yet the Judge had already dismissed the application for nonappearance. If a Judge is 10 minutes late, you have to wait.

[Ridgeway]

I thought CI's motto was "I guess it's better than Riverhead."

[mydisplayname]

I'm definitely in favor of virtual appearances, provided that all such virtual appearances are not also implicitly in camera appearances. Too often, as one comment above implicitly notes, a virtual appearance is conducted using a device to which only the judge has access. It would be wonderful for each court to simply install a large monitor with speakers so that anyone physically appearing in the courtroom could witness the virtual proceedings as they occur.

[Rev. O.T. Medal]

Subject to the two exceptions noted below, remote hearings are now the norm for most courts in California -- including state trial courts and intermediate appellate courts, and federal district courts. As a practicing attorney, I can confirm what others have said. Counsel are prepared and professional. The gains in logistical efficiency and the savings in time and costs are substantial -- especially if the hearing is going forward in a courthouse that is a two-to-eight hour's drive away from counsel's office. (California is a big state.)

As for the exceptions, even judges who routinely allow attorneys to appear by phone or Zoom for hearings will insist on personal appearance for final pre-trial conferences. There are sensible reasons for this rule: (a) if the judge wants to use the PTC to make sure counsel have their ducks in a row in terms of pre-marking exhibits or hammering out stipulations that could streamline the proceedings, the mechanics are easier with everyone in the same room; and (b) since counsel will have to by physically in the courtroom for the trial itself, it is not unreasonable for the judge to use the PTC as an opportunity to meet with counsel face-to-face.

The second, common exception concerns hearings on discovery motions. Courts hate discovery motions. So, judges often require that counsel physically appear in court to argue about discovery. The hope is that, by increasing the burdens on the attorneys, the judge will be able to spur counsel to resolve discovery disputes without court intervention.