Responding positively to concerns expressed by the business community and trial bar, the Texas Supreme Court has proposed a new remote proceedings rule that requires the consent of the parties for a remote jury trial. As you recall from previous reports, the proposal considered by the Supreme Court Advisory Committee (SCAC) gave the trial court discretion to order the parties, witnesses, and jurors to appear remotely for trial. TCJL and several other organizations, including TADC, TTLA, and TXABOTA strenuously objected to this proposal, and we are pleased and grateful that the Court took our objections into account when fashioning the new rule.
The new rule, Rule 21d, Texas Rules of Civil Procedure, generally allows a court to “allow or require a participant to appear at a court proceeding by videoconference, teleconference, or other available electronic means” as long as the notice of court proceeding so states. Otherwise, appearance means physically appearing in the courtroom. However, jury trials are carved out and may only be conducted remotely with the agreement of the parties. This is a significant improvement in the rule, and we owe a debt of thanks to the members of the SCAC, including our own Robert Levy, who stuck to their guns in getting this crucial change.
In the same vein as remote jury trials, we likewise expressed concerns about remote contested evidentiary hearings. SCOTX recognized these concerns by establishing a presumption that a court proceeding in which oral testimony is heard should be conducted in-person, absent good cause or agreement of the parties. In determining good cause, the court should consider several factors, including: (1) case type; (2) court proceeding type; (3) the number of parties and witnesses; (4) the type of evidence to be submitted, if any; (5) the complexity of the legal and factual issues; (6) technological restrictions such as lack of access to or proficiency in necessary technology; (7) travel restrictions; (8) language access problems or accommodations for persons with disabilities; and (9) the previous abuse of a method of appearance. A party may object to any method of appearance within a reasonable time of receiving notice by stating good cause. The court must rule on the objection before proceeding in a written order or on the record. The standard of review is abuse of discretion.
We still have some concerns that the “good cause” standard as applied could disadvantage one or the other party absent agreement. For example, it is not hard to imagine that in some trial courts around the state, a plaintiff or plaintiff’s witness could be allowed to appear remotely, while the corporate representative of the defendant is required to appear in person (or vice versa). The rule could thus be gamed and become part of a party’s trial tactics rather than what is intended, which is to make proceedings more efficient and accessible for everybody.
Moreover, the Texas Judicial Council recently passed a resolution calling for the 88th Legislature to “remove statutory barriers to allow remote proceedings to continue to increase access to justice and enhance court efficiency.” This resolution appears to give proponents of remote proceedings a green light to override SCOTX’s proposed rule by legislation. We recognize that the pandemic forced the courts into a remote posture and that, according to the TJC, more than 2.5 million remote proceedings occurred through the end of August 2022. But these aggregate numbers tell us nothing about the types of proceedings and cases. They also don’t tell us anything about whether the mass use of remote proceedings actually enhances judicial efficiency or simply serves judicial convenience. With respect to access, there is no doubt that remote proceedings can and do help, but without qualitative analysis of the effectiveness of remote proceedings in the myriad contexts in which they have been used, there is no way to be sure that increased access equals better justice. Studies have just begun to come out detailing the adverse effects of remote learning on schools and universities and their students and faculty. Employers are increasingly requiring employees to come back to the office, suggesting that remote work is not all it’s cracked up to be, either. We should tread carefully in vastly expanding the use of remote proceedings in our courts until we know more about outcomes.