With the advent of the COVID-19 pandemic, remote work became a staple to ensure social distancing and slow down virus spread. Inclusive in this remote setup were court operations, such as trials, oral arguments, and hearings, which operated virtually. As we enter the post-pandemic era, a majority of professionals have returned to in-person setups; however, some continue to attend proceedings remotely, leading to several conundrums.
The disparities between remote and in-person attendance were noted long before the current health crisis. A notable example of this was when an adversary appeared in-person for a deposition in a foreign country, while the author’s client requested a virtual participation to curb exorbitant travel costs. Such arrangements had clear disadvantages – the physical absence made it impossible to spot any off-camera conversation occurrences, and direct communication with the client became challenging.
Another instance is during a motion hearing right before the pandemic. While the client participated telephonically, the opposition had a noticeable impact by appearing in court in person. The author recounts that being physically present in court allowed them to present documents contradictory to the opponents’ points, thereby giving them an edge over the remote participation. This event averted remote participation wherever possible, especially for substantial matters like depositions and trials.
Despite these instances, it is clear that personal appearance is not always possible or even necessary. During certain straightforward court functions, the need for in-person involvement is minimal, and the activities can be easily conducted remotely.
In the same vein, certain substantial functionalities require an attorney to appear in person, particularly when the opposition plans to do so. Notably, these would include trials, motion hearings, and other impactful situations. It is advised that, under most circumstances, attorneys consider personal appearances for such significant proceedings. To avoid any unjust advantage given to one party over the other, the court might need to stipulate that all parties appear either in person or virtually, ensuring a level playing field.
As we enter an era of hybrid operations in the post-pandemic world, courts too are witnessing situations where some stakeholders appear virtually while others do so in person. Attorneys and litigants need to be aware of this changing scenario, which can pose both advantages and disadvantages. In some situations, courts may need to step in and ensure fairness for all participants involved.
Further insights on the matter can be gained through this detailed write-up by Jordan Rothman, a partner in The Rothman Law Firm, and founder of Student Debt Diaries. You can get in touch with Jordan via email.
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