May 4, 2021
The Honorable Janet DiFiore, Chief Justice of the New York Court of Appeals, has embarked on a major initiative to leverage technology for streamlining case administration and to promote uniform protocols for virtual courtroom proceedings, including hearings, conferences, bench trials and jury trials.
On February 11, 2021, the New York State Unified Court System issued Virtual Bench Trial Protocols and Procedures (“Protocols”) to the New York Courts, to promote uniform rules covering decorum, safeguards, public access, pre-trial conferences and the conduct of Virtual Bench Trials. All virtual proceedings will continue to be conducted on the MS Teams Platform. The Protocol imposes the same rules of decorum for in-person proceedings to virtual proceedings and adds the following additional requirements: that participants use actual (not “virtual”) backgrounds, remain “present” (video and audio enabled) and object by speaking up and by “raising hand” (physically or using “raise hand” function on Teams). The Protocol requires that counsel meet and confer to discuss exhibits, objections and witness lists, and to submit a report, together with any pre-trial motions, to the presiding Judge two days prior to a Pre-Trial Conference, which is to be held 7-10 days before the start of the trial. Regarding the conduct of the trial, the Protocol requires pre-marked (and Bates-Stamped) exhibits and permits counsel to use the “share screen” function for presentation of demonstrative evidence. Breakout rooms will be made available by the Court for attorney-client and “sidebar” attorney-Judge conferences, and for use as a “lobby” for witnesses waiting to testify at the hearing/trial. Counsel participating in the virtual trial will be expected to have performed a “test run” with witnesses to ensure their technological capability to participate, and to instruct the witness on certain requirements while on the virtual witness stand. The witness must use a computer (not cell phone), may only refer to exhibits shown, be in a separate room from counsel (or on a separate screen) and refrain from all other communications during the testimony, including breaks.
The Trials Subgroup issued a report titled “Improving and Streamlining the Presentation of Evidence in Court Hearings”, geared towards the Judiciary’s implementation of the Virtual Bench Trial Protocols. Each Court will be equipped and trained on the required technology and will be permitted to adapt the Protocols to case-specific needs. Moreover, the report includes considerations for “hybrid” proceedings, with in-person and remote participants, to ensure procedural fairness to all participants. These considerations include encouraging stipulations as to “authenticity”, presentation of evidence in electronic form, or an electronic “version” of physical evidence available to remote participants, and instructions to jurors that remote or in-person testimony should have no bearing on the issue of credibility.
The Working Group for Future Trials issued recommendations focused on how the courts can improve litigation through evolving technology. The Working Group recommends developing a similar manual for remote jury trials in order to pilot such trials on a voluntary basis. The Working Group further recommends training judges and court staff on emerging technology developments and legal issues posed by new forms of evidence created by emerging technologies, including: geolocational data (from cell phones, tablets, cameras, wearable computer devices and vehicle GPS); video recordings and photographic evidence (from cell phone cameras, commercial and home surveillance cameras, vehicle cameras, drones, “body-cams” and other wearable devices); facial recognition evidence; social media evidence (location, appearance, or mood); genetics evidence (for use in personal injury/toxic tort cases); and, “Internet of things” evidence (“smart home” devices connected to the internet). The legal issues for these new forms of evidence are expected to involve discovery requests for metadata or blockchain data, ensuring authentication and preventing alteration, and the application or adaption of spoliation, hearsay and “best evidence” rules. The report also addresses potential future applications of 3D Printing and scanning, holographic evidence, virtual reality and artificial Intelligence. Decision making by “robo-Judges” for routine, high-volume matters is also under consideration.
London Fischer LLP remains on the cutting edge of adapting these emerging technologies and implementing the virtual protocols to ensure the highest level of representation to our clients. This is accomplished through regular training of attorneys and staff on the Microsoft Teams platform, and the application of the emerging technologies to specialized areas of practice, in order to obtain favorable results for our clients.