On Friday last the Supreme Court Advisory Committee discussed proposed new rules to the Texas Rules of Civil Procedure enabling a court
“to allow or require a participant to appear at a court proceeding in person—by being physically in the courtroom—or remotely by audio, video, or other technological means. A remote appearance satisfies any statutory requirement to appear in person unless the statute expressly prohibits remote appearances.” (emphasis added)
The proposal is similar to legislation introduced last session (SB 690 and HB 3611). HB 3611 made it to the calendar but too late for consideration by the House. SB 690 did not get a vote in Senate committee. These bills raised significant concerns and were heavily negotiated to carve out certain proceedings, including some jury trials (in criminal matters). Even with various modifications, the bills did not garner sufficient support to move forward.
The proposed rule originated with the Remote Proceeding Task Force, which the Chief Justice directed “to begin drafting rule amendments to remove impediments to and support the use of remote proceedings, starting with the Texas Rules of Civil Procedure.” Its first consideration by the Supreme Court Advisory Committee sparked a debate over whether the court should be empowered to order parties to appear remotely without their consent under any and all circumstances. As mentioned above, the legislation started out as broadly drafted as the proposed rule but was whittled down in the legislative process. We are confident that the SCAC will engage in a deliberative process that considers all legitimate objections to the rule as drafted and make appropriate amendments to the proposal to achieve consensus on the committee. In our view, such sweeping changes should not be made without a significant degree of agreement from the stakeholders. Clearly, the Legislature took that view when it decided not to advance the bills.
TCJL shares many of the concerns expressed both in the legislative process and at the SCAC meeting on Friday. Remote proceedings can be used very effectively to increase access and dispose of some types of matters efficiently. But a one-size-fits-all rule that allows judges to force parties into the system regardless of the nature of the matter and the parties’ judgment about how best to represent their clients is very problematic. There are good reasons that we have courthouses and courtrooms that are designed to impress all who enter of the seriousness and solemnity of the legal process. Our courts serve the people who seek them out for redress of grievances recognized by the law (or who are haled into them to defend themselves), particularly in matters involving a jury, and it seems that people have a fundamental right to demand face-to-face adjudication if they wish it.
Although the proposed rule does have a procedure for objecting to a judge’s order mandating a remote proceeding based on “good cause,” such an order presumably could only be contested in a mandamus proceeding on an abuse of discretion standard. But without the availability of an interlocutory mechanism to contest it, a party could be forced into a remote jury trial or important evidentiary hearings without the ability to assert, for example, well founded due process concerns. We are also concerned about the Seventh Amendment implications, particularly if one takes the view that as contemplated by the Texas Constitution, jury trials are meant to bring parties face-to-face with each other and their peers. How will appropriate standards for “good cause” be worked out if not on a case-by-case basis, which may add more expense and delay rather than save it, as the rule aims to do.
Finally, we are hesitant about making a huge policy change based on an extraordinary and, we hope, one-time event that is even now in its waning stages. Shouldn’t this wait until the pandemic is over, and we have all the data about what worked and what didn’t? One reason the Legislature drew back from committing to this change in the spring was this very uncertainty and the lack of sufficient time and adequate information upon which to base a decision. We can all agree that the enormous backlog of cases demands that remote proceedings play a part in catching up. But at the same time, the value of simply “catching up” should be weighed against the risk of launching a process that ends up with so many problems that the Legislature will be compelled to step in. We strongly recommend that the proposed rule be negotiated with the stakeholders and that all stakeholders agree by signing on the dotted line. This will assure that we have a process that holds up and improves—or at least does no harm—to the administration of justice.