Judge reaching out through a computer screen

Was there any doubt? Since the onset of the Coronavirus pandemic, courts have taken a crash course in conducting video hearings. With the El Paso and Teller County Courthouses closed to routine business for most of the past year, short of seeing justice delayed the only alternative has been to use video conferencing for most hearings.

After individual divisions experimenting with their own system, the 4th Judicial District has standardized on Webex, and there is even a page on the Colorado Courts website with links to each of the “virtual courtrooms” for litigants, witnesses, and even members of the public wishing to watch proceedings.

Video Hearings via Webex

Given how many thousands of hearings have been conducted via Webex in our 4th Judicial District alone, it’s refreshing to have confirmation that all concerned were acting legally!

Court of Appeals Decision Approves Video Hearings

While our judicial district has some exceptions to the courthouse closure for public safety matters, in family law they are limited to civil protection orders, motions to restrict parenting & parental abduction hearings, and dependency & neglect shelter hearings. See the full list of public safety matters in the most recent Chief Judge Order on court closures.

Note that this list merely authorizes such hearings to be done live, if necessary. The order does not mandate live hearings, and still encourages remote hearings via Webex or telephone when practical. And judging by a new case from the Colorado Court of Appeals, it appears that other judicial districts in the state are operating in similar fashion.

The Chief Judge of the Denver Juvenile Court had issued a directive that all hearings, including termination of parental rights hearings, would be conducted electronically. In R.J.B.,1People in the Interest of R.J.B., 2021 COA 4. (Note – case heading miscaptioned as 2020, not 2021) the mother had unsuccessfully sought to delay her video termination hearing until such time that it could be conducted in person, and the trial court denied the request.

Following a remote hearing, the trial court terminated the mother’s parental rights. The mother appealed, arguing that video hearings done via WebEx were a violation of due process and equal protection, and the trial court should have delayed the hearing until Covid had died down and the court was conducting in-person hearings.

Issues with Video Hearings

The mother’s list of complaints is actually somewhat familiar to the challenges all of us who have conducted numerous video hearings over the past year have faced:

  • Problems hearing other parties
  • Video feed glitches
  • Enforcing sequestration of witnesses (keeping witnesses out of the courtroom while other witnesses are testifying)
  • Confirming witnesses were not being aided by third parties or documents while testifying
  • Difficulty of impeaching a witness with documents (as they would need to be filed in advance in a video hearing, thereby losing the element of surprise)
  • Ensuring court and counsel could observe a witness’s demeanor

Note that all of these are legitimate concerns – family law practitioners, along with any lawyer who has done video hearings during the Covid-19 pandemic, have had to adapt to a new way of conducting hearings. But desperate times call for desperate measures – given the alternatives of risking exposure to Covid vs a 12-18 month delay in a hearing vs doing video hearings, pretty much all of our clients would choose video hearings.

The R.J.B.,2People in the Interest of R.J.B., 2021 COA 4. (Note – case heading miscaptioned as 2020, not 2021) court addressed each of these concerns and more, discussing the efforts the trial judge took to help overcome them and ensure the video hearing provided a fair trial. The appellate court concluded that the trial court did not abuse its discretion denying the mother’s request to continue the termination hearing.

Video Hearings Protect Due Process

The mother was no more successful arguing that video hearing deprived her of due process of the law. The Court of Appeals went through the rights she was afforded, from notice, to court-appointed counsel and the opportunity to be hearing, and concluded that the Webex hearing adequately protected her rights:

“We conclude that the juvenile court ensured that mother was provided with substantially similar procedures as would have been available at an in-person termination hearing. So conducting the termination hearing via Webex afforded mother due process.”

R.J.B.3People in the Interest of R.J.B., 2021 COA 4, ¶ 33. (Note – case heading miscaptioned as 2020, not 2021)

Finally, the court rejected the mother’s equal protection argument, noting that she failed to explain how she received disparate treatment compared to other parties who were similarly situated.

Video Hearings After Covid

Video Hearings & Covid-19

The R.J.B. case was not a family law matter, but a dependency & neglect case which implicated a fairly fundamental constitutional right – whether to take away a person’s parental rights. Yet even with that at stake, the Colorado Court of Appeals concluded that video hearings were constitutional and legal. While I’m aware of no legal challenge to video hearings in family law cases, I have no doubt that they would pass legal muster.

However, being legal does not mean that video hearings are here to stay. While private businesses may well keep on using Webex or Zoom (or Google Meet, which we use at Graham.law) instead of spending the time and money flying people around the world for meetings, judges have grumbled about Webex since the outset. It’s a necessary evil, indeed, even a Godsend to allow us to conduct hearing during a pandemic, but most of us can’t wait to return to the days of real hearings once Covid is in our rear-view mirror.

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Video Hearings