As remote hearings have become the new normal for family law cases, both clients and attorneys need to pay special attention to the unique challenges these hearings present. The Court of Appeals recently addressed these concerns in an appeal of a termination of parental rights case. The Court’s analysis provides several helpful practice tips to ensure each party can participate fully in the hearing and receive their due process under the law.
Anyone who has attended a Webex hearing recently will agree this is not a perfect system for litigation. Attorneys and unrepresented parties can have difficulty making timely objections to testimony or evidence when challenged by frozen screens and audio delays. While the Court suggests all judges can simply disregard irrelevant or prejudicial evidence, the best practice would be to mitigate, or remove, this issue entirely by dealing with sensitive evidence and expected objections with detailed Motions in Limine. Motions in Limine are motions the court must consider prior to the hearing. If you are appearing pro se, do not be afraid to speak up and let the court know your concerns.
Taking these steps is important, as there is no guarantee any litigant can currently secure an in-person hearing. There is no Colorado rule or statute that requires in-person proceedings. Even against the backdrop of termination of parental rights, arguably the most serious family law proceeding, the Court found that without exceptional circumstances, a represented parents’ rights are not violated by holding a virtual hearing. While the Court did not directly address whether the ruling would be applicable to a party who was not represented, or pro se, the Court suggested it would take additional steps to safeguard the rights of a pro se litigant. If you do not have access to a computer or high-speed internet, inform the court as quickly as possible so that alternative arrangements can be made. You may also request time to learn the Webex platform so that you are prepared to fully participate in the hearing.
In rare circumstances an issue comes up that simply does not work for remote presentation. If you or your attorney feel you have such an issue, inform the court immediately, as that may be good cause for continuing the hearing until an in-person presentation can occur. Webex hearings will likely be with us for some time. To ensure all parties receive fair hearings, consider the list below as a guide for making it through your Webex hearing as smoothly as possible.
- Make sure you are in a location with good wi-fi or hard-wired internet. Judges have the ability to troubleshoot technical difficulties as they arise, but they will not be able to fix your hardware or network.
- Ensure the court has begun the recording so that a transcript will be available after the hearing.
- Discuss concerns of timely objections with the court; some judges have used hand signals, such as raising your hand, as well as spoken objections to ensure timeliness.
- Ask the court to test the virtual lobby to ensure sequestered witnesses cannot hear any of the proceedings.
- Dress for court as usual. Webex operates in real time and all participants can see each other.