When the coronavirus pandemic hit New York in March 2020, and Court operations came to a screeching halt, litigants and attorneys were left in a state of flux, unsure of how and when Court operations would resume. New divorce actions could not be commenced and those with scheduled court appearances were told that their upcoming dates would be administratively adjourned until further notice.
Now, approximately seven months later, though the pandemic is not behind us, matrimonial litigation has adjusted to a new normal. Depositions and settlement conferences are being conducted through video conferences. Judges, litigants, and attorneys are logging on to virtual court appearances from their respective chambers, homes, and offices. The Courts are currently transitioning their online platform from Skype for Business to Microsoft Teams. In recent weeks, Courts throughout New York have even started holding virtual trials and hearings. This has prompted novel litigation solely over the issue of whether litigants can be forced to proceed with virtual hearings. The Judge in A.S. v. N.S., 2020 NY Slip. Op 20161 (Sup Ct. New York Co. July 1, 2020) ruled that a custody hearing would proceed virtually as scheduled, over the attorneys’ objections and stated:
“While the court is cognizant of the limitations and inherent difficulty involved in conducting virtual hearings, counsels’ objection do not set forth a prejudicial basis to further delay the hearing. Given the unpredictable nature of the COVID-19 pandemic it is unknown when court operations will return to normal in-person procedures, particularly given a resurgence is anticipated, if not already occurring, with multiple travel bans and advisories in effect. The court is mindful that compelling in-person attendance, in a courtroom, could subject vulnerable individuals to an increased risk of harm. Virtual technology would remove that risk.”
While there is clear controversy surrounding virtual proceedings, there are both benefits and shortcomings that have emerged from this new virtual system. Those in favor of virtual proceedings can point to the substantial savings, both in cost and in time, that have resulted from conducting proceedings online. Gone are the days where attorneys and litigants would stand around the courthouse for hours waiting for their case to be called. Now, most virtual appearances are scheduled for a certain time and parties appear before the judge right away. Efficiency has certainly improved in many respects. However, on the flip side, the courtroom hallway was a popular spot to settle a case. Many deals were struck waiting for a case to be called and judges would often encourage litigants and attorneys to step into the hall to discuss settlement.
Another benefit to the new system is that clients have reported an increased comfort level with virtual court appearances. Entering a courthouse can be a nerve-wrecking experience for many litigants. Some would prefer a virtual appearance from the comfort of their own home, where they do not have to see their spouse in person and instead only see them through a computer screen – or even not at all, as you can usually “pin” certain participants on the call and choose who you see. This takes a great deal of anxiety out of the process for many.
On the other hand, there are plenty of litigants who want their “day in court,” and to see the judge face to face and to feel heard. These litigants may be more anxious about the idea of their technology failing and would prefer to be present in person where they don’t have to worry about Wi-Fi connections and finding a quiet place to set up their computer. Further, there are some couples who commenced divorce actions right before the pandemic, and though they’ve had several virtual court appearances by now, they still have never met the judge in person.
Additionally, if a case reaches trial, there is a host of difficulties and challenges that come with conducting a trial virtually. At the outset, there is no guarantee that everyone involved will have adequate technology. Even if everyone is set up with the necessary technology, nothing is foolproof and Wi-Fi connections can be unreliable. Attorneys must make sure that their clients and all witnesses are completely familiar with the software being used well in advance of trial.
Further, in a matrimonial trial, hundreds of exhibits may be involved, and the electronic introduction of this evidence is complicated. Importantly, it may also be challenging for a judge to assess the credibility and veracity of a witness through virtual proceedings, as certain mannerisms and facial expressions may be lost. Perhaps the biggest challenge with virtual hearings (if children are involved) is that the children will likely be in the same home as one or both of the parties during the proceedings. It is crucial that children are not able to eavesdrop and overhear any part of these sensitive proceedings.
As the pandemic continues, it has become clear that the question to ask is not “will virtual proceedings remain” but rather, “in what capacity will they remain?” Will they just be limited to conferences or will virtual trials become a permanent fixture in the Courts indefinitely? Now is the time to embrace the changes in the court system and the virtual world we are living in. While there are both benefits and challenges to virtual court proceedings, the parties on both sides of every case will face the same pros and cons. Most importantly, proceeding virtually allows litigants to get one step closer to concluding their divorce and moving on with their lives.
At Berkman Bottger Newman & Schein, LLP, our experienced matrimonial litigation attorneys address all your concerns regarding virtual divorce. We provide knowledgeable guidance to clients in New York City, Westchester, and New Jersey. Schedule your consultation today by calling (212) 466-6015 or reaching out to us through our contact form.