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What must I know about Virtual Trials in New York Custody and Divorce cases?
November 7, 2021

 

The Covid-19 pandemic has caused many courts to go virtual and many of the courts still try cases virtually using Microsoft Teams technology. In my estimation, long after the pandemic has ended,  the Courts will probably continue to use this virtual technology for certain cases, especially where parties live out of  State or where there are other safety risks. This is yet to be seen.

In preparing for a virtual trial that is coming up soon, I ran across a very useful article I wish to share that was  written by the Hon. Norman St. George, J.S.C. District Administrative Judge 10th Judicial District County of Nassau.

The article has to do with the protocols the parties are expected to adhere to and follow in a virtual  bench trial, whether it be a New York Family Court trial a New York Divorce trial or a criminal trial.

Here we will focus on the virtual trial as it relates to family law in New York and as it relates to bench trials in New York Family Court and as it relates to divorce matters held in Supreme Court.

For more detailed instructions and information please go to:

https://www.nycourts.gov/whatsnew/pdf/VirtualBenchTrial-Protocols-2112021.pdf

This is particularly important information to have, especially if you are appearing pro se and have not yet familiarized yourself with introducing evidence over the Microsoft Teams Meeting application used by the Court.

The Microsoft Teams platform may be employed at the Court’s election, to hear trials as well as court conferences, preliminary conferences, and arguments on motions.

The Honorable Chief Judge DiFiore was the Judge who spearheaded this virtual innovation.

The virtual trial will mirror the traditional trial in all  respects, except for the technological aspects which must be employed to ensure fairness during trial. It is supposed to be as formal as if you are standing in person in front of the judge. Participants shall make best efforts to provide no audio or visual distractions when in attendance at their virtual trial.

As a litigant, you are expected to dress in an appropriate manner because this trial will be as formal a proceeding as it gets.

Like any other trial, all testimony shall be taken down by a Court Reporter (or by a court authorized recording device) and this will provide a record of the trial so do not speak over another participant.  That is, one person should speak at a time. A Judge has the power to mute your microphone if you attempt to speak over another party. This is one tool that I like since in live court a Judge can not manually mute an obstreperous party or an overzealous attorney.  

Objections to a question may be raised orally or by using the raise hand option provided in the Teams application.

Counsel may ask the Court to pause the proceeding to request that they speak to their client off the record,  In  that instance, the Breakout Room on Microsoft Teams may be used to ensure that no one hears what the attorney is saying to their client during a sidebar.

To protect against ex-parte communication when there is a pause in the trial all parties should mute their computer sound and shut off their video camera until the trial resumes.

It is important to note that the same rules apply in virtual trials with respect to third party access to the trial.  It will be up to the Judge to ensure that witnesses that will be called at trial not be allowed to be present during that part of the trial where they are not testifying. All people present at a virtual trial will need to identify themselves on the record.

The Court System has worked hard to ensure secure connections but if security is an issue, try to us a protected internet password rather than a public wifif connection.

You can expect that technical setbacks can occur.  As such, if there are internet connection problems it is important to share your email and contact information before hand to facilitate swift expedient reconnection onto the internet.

 

Counsel, parties, and witnesses should exchange back-up contact information, such as cell phone numbers and/or e-mail addresses, with the Court prior to the Virtual Bench Trial and discuss a protocol on how to reconnect in case the Virtual Bench Trial itself or a party is disconnected, or other technical issues arise. If appropriate, the contact information for technology support should also be shared. All participants should immediately notify the Court if it appears anyone has dropped from the Virtual Bench Trial. Sometimes there a computer technical support staff will be on hand in the court room to aid the court with technological issues as they arise and this person will identify themselves.

Some but not all virtual bench trials will be live streamed so that the public can have access to the courtroom.  It is yet to be seen how family court matters will be handled, such that if there are matters that require a closed court the court will so advise.

Pro se litigants that have no access to virtual technology should so advise the Court and the Court shall allow  a safe place at the courthouse where the pro se litigant can participate in their trial.

You can expect that a Court may want to have a pretrial court conference ten days before trial so that issues of stipulation as to trial exhibits and other such procedures can be ironed out.

Like in al trials it is expected that the attorneys discuss the identity of their witnesses and the order in which they expect each witness to be called.  Normally the Court will request the exchange of exhibit slists and witness lists at least ten days before trial and counsel are expected to raise any objections as early as possible.

If a party has a problem with securing a witness to appear at trial the Court may still execute SO ORDERED subpoenas at the request of counsel unless there is an objection.

As for proposed Exhibits, the attorney and pro se litigants are required to file them electronically through the EDDS system. If one exhibit has more than one page it is necessary to bate stamp each page so that it is easier to refer to that page when using an exhibit.

 

If you are Plaintiff, or Petitioner, you are to number your exhibits.  If you are the Defendant, you are to use letters to mark your family court or Supreme Court exhibit.

If you wish to present audio or video, these cannot be downloaded onto the EDDS system so you must submit these items directly to the court and counsel at least 15 days in advance of trial. The Court will expect you as attorneys or pro se litigants to try to stipulate to as many exhibits as possible in advance of the trial date so that you can avoid time consuming objections.

Any exhibit presented at trial must be presented per the same evidentiary rules which means that each attorney must lay an appropriate foundation for each exhibit. Once marked and offered into evidence the Court reporter will properly notate the exhibit.

As to witness testimony, the court will send a link to the witness at least one half hour before they are called to testify. The attorney calling the witness will instruct their witness to log in at the allotted time.

Like all trials, any recording of the trial is prohibited.

It is important to note that as in all trials there shall be no communication allowed between a witness or party during the Virtual Bench Trial testimony.  The party and his or her attorney may not independently speak to a witness until their testimony has concluded

When you testify, you are not allowed to refer to documents of any kind other than that presented to them at trial in the form of a marked exhibit.

The Court will also expect that each witness display the room where they will be testifying from and there shall be no other computer phone or other electronic device in the room other than the computer they are using for purposes of the virtual trial.

No one other than the party or witness shall be in the room during trial other than someone that is needed to help with technology. In the case of technological assistance the person in the room must identify themselves to the Court.

No party is permitted to turn off their screen or audio without the express permission of the court.

If counsel requests a sidebar, the court may wish to accommodate counsel through the use of a what is referred to as a  “BREAK OUT”. room provided in the teams platform. In the alternative a court may request a cell phone conference at which point all parties must mute their cameras and audio on Teams.

 

I hope that this article has proven to be helpful in your child custody or New York divorce matter.

 

By: New York Divorce Lawyer Lisa Beth Older, Esq.