[co-author: Taylor Wendland]
Every court in California relies increasingly on remote video technology since the COVID-19 pandemic effectively closed courtrooms. California’s Judicial Council adopted temporary emergency rules to assist courts providing access to justice during the pandemic. As courts limited in-person hearings, remote proceedings became critical to the facilitation of civil litigation. At the center of these virtual proceedings is Senate Bill (SB) 241, a draft bill authored by Senator Thomas Umberg, D-Santa Ana to authorize:
- Remote appearance by Parties,
- Allow all courts to conduct all hearings, conferences, proceedings, and civil trials with remote technology, and
- Witnesses to testify remotely under certain circumstances.
The bill provides that a court may require parties or witnesses to appear in person at a conference, hearing, or proceeding, in certain situations.
While this bill will sunset 90 days after California’s COVID-19 Emergency Order is lifted, it could cause permanent changes to how many courts conduct business. The most public opposition to the legislation is from labor unions representing court employees who fear that technology will decrease employment of their members and who claim that technological issues will lead to inaccurate transcripts and disadvantages to those without reliable internet access. And, in cases requiring a translator, remote proceedings complicate the interpretation process even further.
On the other hand, state judiciary leaders and trial attorneys believe remote access is critical to reducing the courts’ tremendous case backlog. Remote appearances allow cases to proceed faster, and litigants don’t have to miss work to travel to courthouses.
SB 241’s Potential Impact on Employment Litigation in California
As a result of COVID-19’s impact on business and resulting lay-offs, testing requirements and rapid changes to the workplace required by the CDC, Cal/OSHA and county health officials, California’s courts have seen an increase in employment claims. Courts may be able to resolve a larger percentage of cases by conducting proceedings remotely. Remote hearings save transportation time and costs for employment attorneys and their clients, and videoconferencing should increase the availability of witnesses for live testimony. However, in-person trials increase settlement chances as the parties are faced with the inconvenience and pressures of open court. Moreover, videoconference technology limits the ability of the jury or the fact finder from viewing all aspects of witnesses’ persona to determine veracity. Crafty witnesses can hide fidgeting, reading a script and other important aspects of testimony from their cameras. Weighing credibility is especially important to employment litigation which frequently involves “he said-she said” testimony.
Whether SB 241 becomes law or not, courtrooms will continue to use technology to increase the speed at which dockets may be cleared. The legislature has until September 10, 2021 to pass some version of SB 241 or it becomes a dead letter. If SB 241 becomes law, CDF will update you with additional details.