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On April 24, 2020, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order concerning the holding of non-jury court proceedings by video or audio conference so long as the Alabama Supreme Court Order remains in place restricting in person hearing. The Supreme Court Order, which was to expire April 30th, was extended to May 15th.
This Administrative Order included that judges shall have discretion to hold virtual court hearings in all non-jury proceedings which includes civil non-jury trials, such as workers’ compensation cases. The Order states that the hearing shall be held via Zoom software unless the specific judge authorizes the use of a different software. It is the responsibility of any party seeking to have a witness testify to make that witness available via virtual hearing. This can include the witness being available from their home or going to the attorney’s office. The Order also states that the parties are to adhere to the social distancing requirements. The Order gives any party the right to object to a virtual hearing at which time the court will review and make a determination. The Order also provides methods for exhibits to be introduced as well as authenticated.
MY TWO CENTS
Obviously, there are some benefits to moving forward and allowing cases to proceed to trial but there are some issues that may be prejudicial. With a virtual hearing there is no way for any party and/or the court to know if there is anyone else in the room with a witness. While this would obviously be unethical and sanctions could be issued, someone could easily be in the same room as the witness coaching and/or assisting with responses. Further, a an effective line of questioning could be stopped by ending the transmission and ineffective technology could be blamed.
Another aspect that is lost in a virtual trial would be the court’s ability to observe body language. While the hearing is virtual the ability to view someone via camera on a computer is a lot more obstructed than viewing someone live in a courtroom. In addition some software, including Zoom, only allows one person to talk at a time. This could create a problem if an individual was talking and opposing counsel or someone else involved in the hearing sought to make an objection. While we believe the objection would ultimately be heard it may be too late because the question was already asked and/or answered.
In regards to witness availability, this could create some difficulty because a witness may not have the capabilities to participate in a virtual hearing but at the same time may not be willing to go to the attorney’s office. The Order makes it the responsibility of the parties to have a witness available and this could create prejudice in a situation where a witness is needed to testify but that witness cannot be present via their own technology at home nor can they go to the attorney’s office to testify. Also, while the Order does indicate that it would assist with pro-se or non-represented parties in being able to secure and/or find somewhere to have the technology to proceed it could create issues for non-represented litigants in the event that they do not have the capabilities themselves to participate in a virtual hearing and are unwilling, or not comfortable, going to a public place or some other location to do so. The Order does give the parties the right to object to a virtual trial but it is at the Court’s discretion to grant the objection.
Finally, the Order specifically addresses how exhibits are to be handled. However, it seems that questioning and/or cross examining a witness using rebuttal evidence could be difficult in a situation where it was unexpected that you were need it and it was only admissible as rebuttal evidence. Presenting that evidence to the witness and questioning them on it could create difficulty since it would not likely have already been pre-admitted and/or presented to the court.
About the Author
The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.