In January 2020, the Appellate Division considered an important question: how should a judge assess a party’s request to appear at a trial and present testimony by way of video transmission? The timing of this consideration could not be more fitting considering the challenges presented by a global pandemic, which would shift the future of lawyering forever. A famous example of the complexities of an exclusively virtual judiciary occurred when a lawyer accidentally masqueraded as a cat. This aesthetic appearance does not even begin to ‘scratch’ the surface. Court can be particularly tricky for Pro se (self-represented) parties as is, and remote proceedings have only exacerbated the difficulties of navigating the court system.
Although most of the world came to a complete halt during the pandemic, in order to prevent an unreasonable and unfathomable backlog to the court system, in the interest of judicial efficiency, New Jersey Courts have operated remotely through platforms such as Zoom, Microsoft Teams, and various other telecommunication services. While these platforms have proved to be beneficial for lawyers conducting depositions, hearings, client conferences, and various other forms of “lawyering,” the remote trial process has created several difficulties for everyone involved. Notably, these telecommunication services present a unique set of challenges when conducting a trial and attempting to preserve the due process rights of the parties involved.
The Appellate Division released its reported (precedential) opinion on the above referenced question on May 11, 2020, in an opinion authored by Judge Whipple in the case of D.M.R. v. M.K.G. The defendant, on appeal, claimed that the trial court arbitrarily disregarded her due process rights while conducting a domestic violence trial via Zoom.
In the underlying matter, two individuals were involved in a romantic relationship. The plaintiff had gifted the defendant a dog during the relationship. Unfortunately, the defendant had to leave for military boot camp and a dispute regarding the future home of the dog arose. The relationship ended and when the defendant returned from bootcamp, she was concerned as to where the dog was living and wanted to discuss the dog’s home with Plaintiff. Defendant showed up at Plaintiff’s home at approximately 12:30-1:00 a.m. to discuss the dog. Plaintiff’s mother answered the door, and during the conversation, there was a dispute regarding: the individuals present with the defendant; whether threatening language was being used; and, the overall purpose of the defendant’s visit.
As it related to the appeal, defendant claimed that during the duration of the trial the judge failed to ensure her due process rights. Defendant had not been served with the initial complaint requesting the restraining order. Instead, the judge read the complaint and stated he would email it to the defendant and claimed, “for all intents and purposes”, she had been served. Trial would commence the next day. Due to the short window of time before the trial, the defendant did not have adequate time to prepare and as a Pro se litigant was not fully aware of what preparing for a domestic violence trial truly entailed.
Although remote lawyering has enabled increased flexibility and availability of lawyers to review documents quickly to be prepared for a hearing on short notice, Pro se litigants do not have the same availability and are not experienced with legal proceedings.
During questioning, it was clear that plaintiff’s mother was within ear shot while plaintiff was being questioned and frequently attempted to influence plaintiff’s answers. Videoconferencing trials may not be able to adhere to the same level bifurcation that we see at the courthouse. However, once it was apparent that plaintiff’s mother was attempting to correct plaintiff’s answers, the Appellate Division indicated that the judge should have intervened and sanctioned such behavior. The judge at the trial level in this matter tried to streamline questioning in a way that Judge Whipple indicated borderline advocating for the plaintiff. The judge asked a series of questions while the plaintiff was being questioned; the Appellate Division noted that this was due to the defendant’s inability to properly prepare and understand how the trial would be conducted. In the Appellate Division’s opinion, Judge Whipple indicated that the judge failed to ensure that each witness was alone while remotely testifying. Moreover, the parties, on numerous occasions, addressed each other directly, instead of having communications facilitated by the court. Typically, the court will engage in housekeeping prior to domestic violence trials advising the parties subject to the Temporary Restraining Order to address the court and not each other in order to avoid any violations thereof.
The opinion specifically provided:
Although there are obvious, understandable challenges facing judges who seek to administer effective trials using videoconferencing technology, court directives and due process must nevertheless be maintained. Specifically, each witness must be alone while remotely testifying. “The purpose of sequestration is to discourage collusion and expose contrived testimony.” Morton Bldgs. Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992) (citing 1 Stephen A. Saltzberg & Michael M. Martin, The Federal Rules of Evidence Manual 736 (5th ed. 1990)). The presence of plaintiff’s mother throughout this trial was problematic. Additionally, the parties should not address one another directly, as they did here. These longstanding guardrails remain in place alongside technological advances so that courts may continue to fairly and effectively serve the public amid a grave public health crisis.
It also goes without saying that, since defendant had less than 24 hours to prepare her defense upon receiving the complaint, she was unable to obtain any witnesses to testify on her behalf. In other words, she was unable to adequately prepare to corroborate her version of the events. The Appellate Division highlighted that defendant did not have a clear understanding that she would need to prepare those witnesses by the next day for trial.
Final Restraining Orders should only be issued if there is a continuous and severe threat of future harm or intimidation. See Silver v. Silver, 387 N.J. Super. 112 (2006). Defendant stated she only arrived at plaintiff’s house to understand what happened with the dog and that she had no plans to return to plaintiff’s home. Additionally, the plaintiff’s mother stated she did not feel threatened by the defendant, but rather by the individuals that had been present with the defendant.
Ultimately, this remote proceeding demonstrates the host of issues that COVID-19 has opened for virtual trials in the court system. As we continue to shift how we operate our proceedings, protecting litigants’ due process rights should remain a priority.
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