In response to the COVID-19 pandemic, the Arizona Supreme Court has issued a series of administrative orders which have dramatically impacted the day-to-day operations of Arizona courts. In the family courts, one of the most significant disruptions has been the transition to conducting contested evidentiary hearings virtually. Holding a hearing remotely presents a host of challenges that would not otherwise have had to be considered.
Because virtual hearings are expected to be the norm for the foreseeable future, litigants should be aware of a number of easily avoided stumbling blocks that have undoubtedly disrupted numerous virtual hearings in Arizona and around the country.
It is always important to be well prepared for any hearing, and in the context of virtual hearings, being underprepared can have more pronounced negative effects. During in-person hearings held in the courthouse, extra copies of exhibits could be brought to the courthouse on the day of the hearing. Holding a virtual hearing requires all participants to take extra care to ensure all exhibits are delivered to the courthouse in enough time for them to be properly marked ahead of the hearing. Attorneys also need to be sure their clients are familiar with the exhibit numbers assigned by the clerk. Judges expect all participants to know the exhibit numbers and have access to each document so that the parties and the court can view copies of the same documents even though they are each in separate locations. Playing audio or video recordings during a virtual hearing can also present issues if proper planning is not put in place.
Many courts in Maricopa County are using GoToMeeting to hold remote hearings. Some Pinal County Courts have recently begun utilizing Cisco’s WebEx platform. Other courts are holding strictly telephonic hearings. Regardless of which technological application a given court chooses to use, attorneys and clients need to make sure to familiarize themselves with their own equipment as well as the court’s chosen platform. Downloading a given application ahead of time and gaining familiarity is a small sacrifice that can save valuable time during virtual hearings. This suggestion may seem so obvious that it should not even have to be made, but experience has shown it to be a frequently overlooked step that has led to many avoidable issues.
During the actual hearing itself, there are advantages to having the attorney and client physically present in the same location. When legally and procedurally appropriate, having the ability to mute yourselves and have private conversations can replace what would normally be communicated through the “whisper” at counsel table during in-person hearings. The ability to have this type of privileged communication mid-hearing is obviously lost if the lawyer and client are not in the same room. Another potential pitfall of not having the attorney and client in the same location is that time can be wasted if the attorney and client have to constantly confirm with one another which exhibit the other is referring to. Most family court hearings are subject to strict time limits, and wasting even a few minutes can have significant ramifications downstream.
Virtual hearings are expected to continue to be the rule, rather than the exception, for the foreseeable future. The unfortunate fact is that the outcomes of many hearings have already been impacted by issues that never would have come up during a traditional court proceeding. Now, more than ever, having an attorney who is comfortable adapting to changing technological requirements, and who has the ability to identify new ways in which to gain every possible advantage, can be of great benefit. Those involved in any type of pending family court litigation will very likely participate in a virtual hearing in the near future.
If you or a friend are headed to family court, it would be wise to involve an attorney who is comfortable adapting to new technology and who has a demonstrated record of successfully conducting virtual court proceedings. If you have determined that you need experienced legal representation, please call (480) 733-6800 and ask to speak with Michael D. Girgenti