远程听证：远程出庭和出席的新时代 | 法律午餐字节 | 第11集

Welcome everyone to our latest episode of Legal Lunch Byte my name is Jonathan Bench I’m in Salt Lake City Utah I am joined today by my new colleague Karen Albence and she is in California Karen this is really other than the few minutes that we spent uh before we went live this is really our first conversation we we work in different practice areas and I’m always interested to learn from other attorneys because to me the litigation process is always a little bit scary are and unknown but when I’m drafting contracts it still has I still have to think about uh where we’re going to be fighting over things and what kind of law we’ll be using when we’re fighting so um can you please introduce yourself to our audience and and then uh we’ll jump in sure my name is Karen Albence and again I live in California Southern California right now I’m located in San Diego but um I practice in pretty much any city in California so it’s a pretty big state I’ve had a multiple pending cases ranging from Los Angeles Riverside all the way to NorCal so I’ve had a lot of experience with litigation cases in fact over 18 years business litigation a little bit on the newer side within the last five years but I’ve had a lot of wide vast experience in litigation in general excellent so we want to focus a little bit on covid and what covid did to the litigation process I know that for a while everything shut down and then Court started warming up to the idea of doing do more remote hearings so can you describe that process sure uh you know before covid it was pretty common that most hearings depositions trials took place in person um in very few kind of unique situations the courts would allow a deponent to testify remotely depositions may take place remotely and trial was definitely taken in person but after covid occurred many of the procedures in the state of California changed uh there was a lot of concern regarding health issues it was kind of you know very unknown at the time and so the Court’s system actually shut down for a period of time I believe it might have been about a month or so depending on which jurisdiction you’re in there was a complete shutdown and it came about from an order that came from the governor who obviously did a wide State shutdown of not just the court system but pretty much of all the businesses but you know there’s a lot of cases existing in the California court so some of the jurisdictions had to figure out uh different ways how to open up and they did so but they did it in a modified fashion civil cases they pretty much put the all the cases on hold and they still move forward on a limited basis with the criminal cases because obviously there were issues with due process rights of the individuals and so thereby they just put those cases that which are civil cases kind of on the back burner until they could figure out a new system and how to move forward with all the number of cases each jurisdiction had to handle so that’s so interesting so typically when you’re in trial you were you using technology before is it common to put exhibits up for the jury to see or for the witnesses to see is it so is this a I I’ve only sat in on really a handful in my in my career and that was back when I was a law student yes um in trial it’s very common to provide exhibits within the courtroom and it could be done different methods but the most common is obviously through your computer where your exhibits are being held you can easily put it up on a a screen that set up in the courtroom however with um remote testimony and recently very very unusual an entire trial we uh completed remotely you were very dependent on very good um programs that you had to use in order to get those exhibits up on your screen and had to learn how to move quickly with those exhibits um it’s it was a very unusual unique situation and but it was a learning experience as well because this may be the trend moving forward so to have that understanding experience now is probably a good benefit but there’s also downsides to that in person having a trial in person um having depositions in person and having even hearings in person you gain the benefit of communication by Body Language being able to read someone more clearly seeing facial expressions more clearly and you lose a lot of that with the changes in trends of remote appearances whether it’s by trial deposition or even in hearings you lose that and that’s a a great benefit that you would need um generally in litigation so it’s not all about what someone says it’s how they say it and it’s also their body language right and so can you contrast the difference between doing a bench trial and a jury trial I got I have to imagine that it’s different uh I mean just from a from a practician standpoint it’s got to be different presenting your case to a judge versus a jury and then adding the technology layer on top of that now do you feel like um it’s this is me projecting myself into your space but I feel like it would be a little bit easier because you only have to focus on the judge so Tech the technology wouldn’t be as big of a hurdle whereas if you’re trying to focus on all the jurors as uh you know as you’re providing arguments or as you’re opposing council is providing arguments and trying to read all those signals simultaneously which is got to be harder to do on a screen as opposed to being in person yeah that’s correct um the trial that we just completed recently was actually a bench trial I believe because it was a bench trial the parties were able to agree to uh remote appearances attendance and completion of the trial remotely if it was a jury trial that would not be an option I just I don’t believe it would be an option it would be too difficult to try to read the jurors and then also get evidence up on the screen quickly enough and also whether it’s in person or remotely you can lose people’s attention and you generally find out when you’re losing their attention when you’re in front of them in person and you don’t gain that benefit if you’re remote because obviously it’s much more difficult to look at entire screen of 12 individuals plus two alternates plus the judge plus the witness so it becomes an issue where you you lose that benefit so I would say I don’t even know of anybody thus far who actually has completed a jury trial remotely I believe the um councils and the parties probably would not agree to that with the bench trial it’s much different you’ve got like you said you just have one judge they’re listening to evidence they’re more lenient about time frames and producing evidence and documents on a screen they understand some of the uh difficulties with new technology with the jury I don’t think they’re as um probably open to there being a long delay in putting up records and producing Witnesses and again you can lose the attention span of a juror much more quickly than you can lose one from a judge so and again I I have not heard of any attorney thus far my own experience and from my contacts Who’s actually handled a jury trial remotely I don’t believe they would agree to do that um what’s interesting is after covid um and when I say after I meant after the uh stay was lifted relating to the court system I actually did have a trial in San Diego County that took place approximately about two years after the the restrictions of stay at home but the uh new restrictions that were put though however was that the jurors were allowed to wear masks during the trial which again with that being said even though it was in person you still lose that ability to be able to read facial expressions and understand what the juror is thinking and so thereby you actually lose that so we actually opted for purchasing ourselves um Shields face Shields which were clear and we told the jurors that they could wear those face Shields and that whereby we could still see their facial expressions during the trial so it’s kind of a trial and ER going through this whole process no no I didn’t mean to make that kind of joke trial and error but meaning you actually had to kind of go with what was happening the newer changes and then realizing that you had to adjust and there’s different ways to adjust but it’s been a learning curve for everybody not just the court system and not just for the attorneys but also for the judges I’m sorry and also for the witnesses and and for the parties themselves right and and how has how have clients adjusted to this I’m you and I were talking earlier about the difference between having clients in Europe and clients in the US it do you feel like your your clients kind of just rolled with it when you said this is this is the new normal for how we have to deal with this situation or were they um were they pushing you to try to do you know try to I’m thinking about the expense of the face shields for instance you know face Shields maybe you’ve got other things their clients generally just understand uh you know we need to move forward and and it’s better than pushing the trial off until U you know until everything went back to normal I believe so just because the trial the trials have all been pushed so many times due to those type of restrictions that um the cost of something like face Shields seemed very low considering what the clients were losing In Time by not having a trial take place right now so I I would have to say all the clients have been very open and and accommodating to the situation and of course all the clients are living in the same society that we are I mean they they know this from personal experience they have a business that’s been shut down for a while um people lost their jobs a lot of people had these new ways of living where you’re working from home and they have children and they’re having to figure out how to deal with the court systems and then also dealing with school systems and also you know this new life you know working from home remotely and having children at home constantly so I don’t think it was something unusual and unique for any of the clients or something unknown to them because they were already living it but when you provided the options to many of the clients saying hey we’ve got to accom make different accommodations now we can move for your trial right now but we’re going to have to do you know a b and c a little bit differently which we would not have to do before covid or do you want us to wait and see what happens in several months with these type of restrictions I would have to say the majority of clients say let’s move forward but there were times when it wasn’t our choice the courts just simply said we cannot try your case right now um we don’t have a courtroom available for you um and there are some other issues too that I found out that I was not made aware of until um my in-person trial that occurred possibly about six or seven months ago that if any one of the staff members in the courtroom came down with something as simple as a cough they were out for approximately seven days and so they obviously you didn’t want that to happen to the judge but if it happened to the bff or the clerk of the court they were out and they put in a replacement and they had some real concerns about that spreading so they so even today’s date there are a lot of precaution is still in place because the court system they just don’t want you know somebody to bring in something and it doesn’t have to be Co necessarily it could just be any cold or sickness but they’re very concerned because of the close proximity of all the people who have to be attend trial um within the courtroom that it could spread pretty fast so um you know so there’s been a new there’s been new changes everywhere it has affected everybody and then maybe that’s sort of the bright line um situation here the Silver Lining and this whole situation is that everybody is going through the same situation together whether it’s through the court system or through their personal lives or through their job so everybody’s been very cooperative and understanding of the situation so I’ve got two questions for you about efficiency now do you first one do you feel like judges have embraced this I feel like if if I were a judge rather than having the parties come in and waiting for people to arrive that if I can just sit at my desk and work and and choose to uh you know operate most of the trial or all the trial remotely that I would certainly Embrace that if it were up to me but that’s just my personality do you feel like the judges are are really happy about kind of streamlining some of these processes yes and no and it really depends on the jurisdiction and it depends on the judge and I actually wrote a blog post about um just recently about you know making sure you monitor not just a broad General sense of the rules of super procedure which obviously changes could change on a yearly basis based on new trends and also things like stay-at-home orders and then variations to the codes but you also have to look at the local rules for each County where your case is sitting because they have specific rules on how they want to handle these matters moving forward then on top of that you have each judge has their own specific courtroom rules in which how they want you to handle that and I would look at as like fishing the CCP codes which general or for everybody to follow it’s like a y net this is what you’re supposed to be doing then I would look at it as the county rules the local County rules as a smaller net but that smaller net is what trumps the larger net and then at very last you’ve got the judges own specific court rules which is the smallest net but that one trumps all the other Nets and they tell you how they want you to proceed and so it depends on the jurisdiction in the in the court like for instance there are some jurisdictions in California which they stated we do not want you appearing in person for certain type of hearings if you have a law motion hearing which could adjudicate some of the claims in your case you should be there in person but for the other hearings relating to let’s say setting of dates or there’s an OSC called Orders Show Cause we want an explanation from Council relating to some outstanding issue in the case do not be here in person it can be done remotely or just going to send out an order from your papers now let’s let’s talk about some other jurisdiction some changes they had a an opposite problem where now you had too many attorneys who were so used to remote attendance that they’re overbooking all their hearings for very minor Discovery issues which they would never have done before the days of covid because before covid you would have to hop in your car drive over to that Courthouse Park obviously present your issues or case to the court after your papers were done and those extra steps that you had to do made those attorneys assess those cases or the that issue in that case whether it was valuable for them to go forth before the judge and bring up this whole issue because of remote um hearings attorneys were overbooking the whole system with all of these minor issues that could easily be resolved on its own or two should not have come before the court so they’re now judges are saying if you set up these type of hearings you must attend in person unless you get permission from the judge for the that you may attend remotely for specific reasons which could range from like you are truly have you’re truly sick um or you’re from out of state or you’re not within the jurisdiction so um so I’m we’re now seeing another Trend going on going the opposite direction but you just you know it’s everybody’s in the same situation so you just have to go with the changes and then understand why and then just you have to adapt and everyone’s had to learn how to adapt so that’s great well we’re at time and you actually answered my second question which was who gets to decide how much how much of this happens remotely and how much in person so really appreciate you taking the time to sit down with me today it been fun to get to know you better and uh definitely we’ll catch up again soon thank you Jonathan thank you and for everyone out there who’s watching next week we will be talking about blockchain developments in Brazil with my friend Julia Pazos so if you’re interested in what’s going on in in South America around blockchain she’s one of the foremost experts in Brazil on blockchain and IP thanks everyone thank you