Rules of the Remote

Changes Proposed to Allow for Remote Appearances in Trial Courts

BY HON. ANGELLE GERL AND HON. JAMES E. ROGERS

The pandemic brought many dramatic changes to our lives. Public health requirements greatly accelerated adoption of video platforms like Zoom, Microsoft Teams, Webex by Cisco, FaceTime, and others (what we will call here “remote technology”¹1We have adopted the term “remote technology” for rule amendments to avoid the need for new rule amendments every time a new form of technology is invented that allows someone to appear from another location.). In 2020, many courts across the country, including our state trial courts, raced to adopt these platforms in order to reopen. 

The pandemic has receded but remote technology, love it or hate it, is here to stay. In courts across the country, in states as politically diverse as California, Texas, New Jersey, Michigan, and Minnesota, statutes or new court rules have been passed allowing the use of technology in some form in court proceedings. Washington state courts led the country as early adopters of remote technology but we have not yet adopted statewide rules or statutes allowing its permanent use. Now is the time. 

The Board of Judicial Administration formed a Remote Proceedings Work Group to convene practice groups and draft amended rules for trial courts. We, the authors of this article, are the co-chairs. These groups have proposed certain amendments and a few new rules. These have now been published by the Washington Supreme Court for comment at www.courts.wa.gov/courtrules/.

The proposed rule amendments would allow the continuation of current post-pandemic practices that have emerged in many superior and limited jurisdiction courts, from King to Pend Oreille and from Walla Walla to Pierce Counties. Our goal was to remove any barriers to remote proceedings. But the proposals are not a mandate to hold such proceedings. We recognize that we have trial courts that operate with different resources and different views on what works for their communities. For example, some courts operate with limited funding, staffing, and technology, while others have sophisticated systems and ample funding to facilitate remote hearings. 

Our work groups are in the process of developing best practice standards and reference materials that will encourage consistency among judicial officers and jurisdictions across the state. We believe that education in technology will encourage consistent, clear applications of its use, all to create greater access. We will review the need for a statewide funding proposal and draft such a proposal if necessary. 

We considered current practices in trial courts across our state, as well as the Board for Judicial Administration Court Recovery Task Force Final Report of June 2022, the recommendations of its General Civil Litigation Committee, the Remote Jury Trials Work Group, and the King County Superior Court Report with Lessons Learned and Recommendations. We thank the WSBA’s Equity & Disparity Work Group for submitting the strategic initiative proposal that led to this project. 

What follows is a summary of the work groups and some of the proposed rule changes. 

SUPERIOR COURT WORK GROUPS

We formed three separate superior court work groups: criminal, family law/dependency/juvenile, and civil. Most of the proposed changes were in the civil rules. All of these proposed amendments or new rules were unanimous with one specific exception, and that was proposed amended CR 30, the deposition rule.

The Criminal Practice Group included representatives from the Washington Defender Association, Washington Association of Prosecuting Attorneys, Washington Association of Criminal Defense Lawyers, and superior court judges. 

The criminal rules already provide for remote pretrial appearances. See CrR 3.4. The importance of the existing rule cannot be overstated. Judges in rural counties told us that it would be difficult to obtain counsel for all defendants without remote means. This group proposed no new criminal rule amendments and unanimously proposed one amended rule as to form only (to include a uniform term for remote technology throughout all rules). 

The Family Law/Dependency Practice Group included the Attorney General Office’s Dependency Unit, the Office of Public Defense, and superior court judges and commissioners. The group unanimously proposed one new rule to allow participants to appear remotely in dependency cases if they so wish. The proposed rule allows the judge to permit parties to appear remotely or to require parties to appear in person. It was reported that in some jurisdictions, cases are currently held in a “hybrid” manner in which some people appear (by choice) in person and others appear (by choice) remotely. The rule allows for this practice to continue. 

The Civil Practice Group included representatives from the Washington State Association for Justice (WSAJ), the Washington Defense Trial Lawyers, the WSBA’s Access to Justice Board, the American Board of Trial Lawyers, the Superior Court Judges’ Association (SCJA) Rules Committee, additional judges and commissioners (small and large jurisdictions), and the Washington State Association of County Clerks. King County Bar Association representatives were also involved but did not vote. This group proposed nine amendments to Civil Rules. There was unanimity for all changes but one. 

PROPOSED SUPERIOR COURT CIVIL RULE AMENDMENTS

In broad strokes, the proposed rule amendments can be put in one of two categories. First, there are simple amendments related to the ability of courts to allow remote technology for pretrial hearings, motions, and other matters. One could argue that such changes are not even necessary and are within the existing authority of the court to allow. But we had convened, so we proposed the changes. See CR 6, 16, 26, etc. We include in this category remote bench trials, which have become a commonplace practice where technology is available. The rules also allow for so-called “hybrid” hearings and trials where some are present in the courtroom and some remote, by their own choice. 

The second category of rules relate to witnesses. Where counsel disagree on whether a deponent or witness in court may appear remotely or must appear in person, our proposed rules include a list of factors to consider. Readers of this article may disagree about whether a witness testifying live versus by remote means affects the outcome of a trial or creates difficulties in judging credibility. While we (the authors) have seen no evidence that this is the case during several years of pandemic video hearings and trials, our group’s job was not to resolve this issue. To the contrary—our job was to propose rules that allow counsel the ability to argue for in-person or remote witnesses, as each counsel believes is best for their case and client. Courts and counsel should be allowed to decide this issue under the facts of their cases and their jurisdictions. 

Once again, our group considered current practice. For many jurisdictions, in certain hearings with witnesses (for example, protection order cases) it is common for one party to appear in person and another remotely. In some jurisdictions, in civil bench and jury trials, certain witnesses, especially experts and doctors, are appearing more often by Zoom or other remote technology.²2 In criminal trials, defense attorneys occasionally ask to call witnesses (usually expert witnesses) remotely,  at least in King County Superior Court. Other circumstances may lead to the use of remote technology. Sometimes, a witness appears live in court, but their case cannot be completed within a schedule and the witness must physically leave. A court should have the ability to consider allowing the testimony of such a witness to be completed by remote means, if necessary. 

We also considered that many lawyers now hold depositions by remote means and many wish to continue this practice, at least for some witnesses. 

For our proposal for CR 43 (taking of testimony for hearings and trials), if the trial court must decide a dispute among counsel over whether a witness may appear remotely, the trial court must consider the interests of justice per CR 1, prejudice to a party, and the ability of a party to subpoena a witness. Further, the proposed rule requires that a party served a CR 43(f) notice must appear in person. For our proposal for CR 30 (depositions), in the case of a dispute, the trial court must consider the role of the witness in the case, the complexity of the case, prejudice to any party or the witness, whether the witness is subject to the court’s subpoena power, and the interests of justice per CR 1. As you can see, these factors are similar, though not identical, between the two proposals. 

The CR 30 proposal was the sole superior court proposal that was not entirely unanimous. The WSAJ cast the lone dissenting vote. The WSAJ’s view was that if a party noted a remote deposition first, and later opposing counsel filed a motion for a live deposition, a judge should decide the issue under the good cause in CR 26 (general provisions governing discovery). The WSAJ believes that the good cause standard is an existing standard familiar to courts. 

The majority of our civil group disagreed with this proposal, thinking that this would create a “first in time first in right” rule and promote a rush to note all depositions immediately. Some also believed that the good cause standard was too high and too general to be useful to judges. The WSAJ has filed a comment with the Supreme Court.

The Civil and Criminal groups considered and unanimously approved a new rule, GR 41, on remote jury selection. The rule simply provides a process, like all of these proposals. No jurisdiction is required to adopt this manner of jury selection. The view of the Criminal Practice Group, notably criminal defense practitioners, was that they had a right to object to its use in some cases, but that they approved the process as set out in the rule. Remote voir dire is used in several counties in criminal cases and in King County in civil cases. 

One might ask why any trial court uses remote jury selection after the public health emergency is over. In some large jurisdictions, it proved to have unanticipated advantages. In King County Superior Court, for example, remote jury selection allows more cases to get out more quickly, results in more diverse and younger juries, and jurors love it. More cases get out because the number of people who can be summoned in any week is five times the number that can be physically brought in. In King County, no case waits for jurors, no defendant is delayed in jail, and no civil case, no matter how lengthy and no matter how many other criminal cases are in front of it in line for jurors, ever waits for jurors. King County has surveyed its jurors and receives constant feedback. We have received many, many juror compliments on the system.³3 If a juror does not have access to technology, the juror comes in person, but at least in King County that is rare.

While remote voir dire may not be desired by all (or even many) jurisdictions, it makes sense to at least allow this innovative process to go forward where a jurisdiction chooses to use it. Again, the vote was unanimously in favor by all groups. 

PROPOSED RULE AMENDMENTS FOR COURTS OF LIMITED JURISDICTION 

For courts of limited jurisdiction rules there were two subgroups: criminal and civil. The groups were made up of members from various interested parties including public defense attorneys, prosecutors, court managers, judges, and private attorneys. The groups designed the amendments so that appearances may be physical, remote, or through counsel. The initial draft of the proposed rule changes was reviewed by the District and Municipal Court Judges Association Rules Committee. All proposed changes were also provided to the limited jurisdiction subgroup members. Both the civil and criminal groups met as a whole to discuss the Administrative Rules for Courts of Limited Jurisdiction. 

The groups met regularly to review all proposed amendments and draft or edit changes together over Zoom. Members were invited to suggest additional amendments. The group discussed proposed changes, disagreements, and differences of opinion. Rules were modified during the meetings as the discussions evolved. Members were invited to speak with their respective organizations, to share drafts of the rules, and to discuss proposed changes and any objections from their respective organizations. The groups voted on each rule. 

The majority of limited jurisdiction rule changes were unanimously or nearly unanimously agreed upon. Where there remained strong disagreement, members were invited to submit a statement in support of or in opposition to the final draft. The limited jurisdiction groups proposed amendments to 25 rules, with the majority of the amendments being technical changes. The groups proposed one new rule: ARLJ 15. There have also been proposals to add definitions to Administrative Rule for Courts of Limited Jurisdiction 3. 

THE PROCESS AHEAD

After submitting these proposals, we met with the Washington Supreme Court’s Rules Committee in August 2023 to answer the committee members’ questions. The Supreme Court then voted to publish these proposals for public comment during the 2024 period. All of the proposed rule changes are now available on the Washington State Court Rules website (www.courts.wa.gov/courtrules/) with detailed cover sheets regarding each rule.

We want to thank all the group members for the many hours they have put into these proposed rules and Penny Larsen, from the Administrative Office of the Courts, who has run this large project and without whom we never would have gotten this far. 

MORE ONLINE > Find all of the proposed rules currently published at www.courts.wa.gov/courtrules/. The deadline to comment is April 30, 2024. 

NOTES

1. We have adopted the term “remote technology” for rule amendments to avoid the need for new rule amendments every time a new form of technology is invented that allows someone to appear from another location. 

2. In criminal trials, defense attorneys occasionally ask to call witnesses (usually expert witnesses) remotely, at least in King County Superior Court. 

3. If a juror does not have access to technology, the juror comes in person, but at least in King County that is rare.