by Sean Scribner –
Sometimes more efficient
A delightful online court moment viewable at the court’s YouTube channel: https://youtu.be/KxlPGPupdd8
One lesson learned from the Covid-19 pandemic is that many routine court proceedings can be more efficiently handled remotely. Thus, what was borne out of necessity served to highlight the tangible benefits associated with the utilization of remote proceedings, namely, efficiency, convenience and cost-savings. Unsurprisingly, appearing remotely, whether by video-conference or teleconference, quickly gained favor with many courts, attorneys and clients.
Other times, not so much
However, the reality is that certain proceedings cannot be conducted as effectively remotely. For example, many attorneys share the belief and have experienced the frustration of remote proceedings being ill-suited where complex, voluminous evidence must be presented or where substantial witness testimony must be provided, to say nothing of the many drawbacks associated with remote jury trials.
As the disruptions associated with the pandemic continue to recede, attorneys and clients are faced with a diverse array of approaches regarding courts’ handling of the transition back to in-person court proceedings. Some courts have chosen to quickly return to embracing in-person proceedings, while some have chosen to retain the use of as much remote proceedings as possible.
Proposed rule changes aim to keep remote options open
Recognizing the need for broad-based standards going forward, on October 14, 2022, the Texas Supreme Court announced proposed rule changes to the Texas Rules of Civil Procedure. The new proposed rules are open to public comment until January 1, 2023 and are expected to take effect on February 1, 2023. The new rules are designed to provide parameters controlling the use of remote proceedings, which hopefully will lead to greater uniformity, predictability and efficiency while serving to promote the just, fair adjudication of claims.
For example, new Rule of Civil Procedure 21d will provide that a court may allow or require a participant to appear at a court proceeding by video-conference, teleconference or other electronic means. Importantly, the rule would not allow a court to require a party or lawyer to appear electronically for a court proceeding in which oral testimony is heard, without good cause or agreement of the parties. Further, the rule would not require a lawyer, party, or juror to appear electronically for a jury trial, without the agreement of the parties.
Also, Rule 21d will allow a party to object to any method of appearance, whether in-person or remote, based on a showing of good cause, which will be evaluated based on factors such as: the type of case or court proceeding, the number of parties and witnesses, the complexity of issues, the type of evidence to be submitted, technological restrictions, travel restrictions and language restrictions.
Hoping to find a fair balance
In conclusion, by providing standards for the governing of remote proceedings, the Texas Supreme Court is recognizing and accepting the reality of the importance of remote proceedings for the efficient resolution of many routine litigation matters, which could assist in clearing the substantial backlog of cases piled up on courts’ dockets statewide. To account for potential drawbacks associated with the use of more remote proceedings, the Court is hoping, by providing an avenue for objections and allowing the unique circumstances of each case to be factored in, to avoid potential pitfalls that would likely result from blanket in-person or remote policies. Lastly, requiring that all parties agree before being subjected to a remote jury trial is a positive development that will help alleviate the significant concerns associated with remote jury trials.
The proposed new and amended Rules can be viewed at the following link: https://www.txcourts.gov/media/1455045/229091.pdf
What do you think?
As discussed, the Texas Supreme Court is taking public commentary on these new proposed changes. If you wish to comment, the Court has directed that comments be submitted in writing to rulescomments@txcourts.gov no later than January 1, 2023.
However, you may wish to provide your comments to me and I will pass those along. You can email me or call me at 469.916.7700 ext. 117.
when it matters ™
About Sean K. Scribner
Sean Scribner focuses his practice primarily in the area of commercial litigation. Sean has experience representing clients in a diverse array of litigation matters, including all manner of commercial disputes involving small to large businesses, partnerships, securities, insurance, and employment-related issues.
Sean has prosecuted and defended cases involving claims for breach of contract, fraud, anti-trust, DTPA violations, non-subscribing employer defense, mechanic’s liens, and construction defects.
Learn more about Sean…