Even where state rules of civil procedure default to in-person proceedings, remote appearances may be possible so long as parties agree to stipulation.
Three years since the start of the pandemic, as the country ends national and state emergency orders, the role for remote appearances remains a solid staple in civil procedure. Generally speaking, the question isn’t will courts allow remote appearances, but how appropriate might a remote appearance be given the individual circumstances of a proceeding. Whereas debates surrounding remote appearances are often tied to constitutional protections for criminal and evidentiary matters, states appear to be more lenient in allowing exceptions for other types of cases. So it’s not surprising that, despite reverting to in-person appearances, some states allow discretion for non-evidentiary and/or civil remote hearings. Let’s look at a few examples to see how some states handle remote appearances in a post-COVID era.
In early 2023, Nebraska enacted procedural rules affecting remote appearances at the district court level. These rules vary with respect to default presumptions. Nebraska’s Second and Third Judicial Districts state a presumption for in-person hearings whereas the Eleventh Judicial District recognizes the availability of remote appearance pursuant to Nebraska Revised Statutes § 24-734. However, overriding exceptions despite the presumption appear to focus on two areas: party stipulations with court permission, and the grant of judicial discretion for non-evidentiary hearings and proceedings not involving witness testimony via oral examination. In other words, even where Nebraska presumes an in-person proceeding, courts recognize the value and legitimacy of remote appearances under certain circumstances. Not surprisingly, this permission for remote court hearings aligns with state authorization of remote depositions pursuant to Nebraska Court Rules of Discovery in Civil Cases §6-330(b)(7).
Another state, Texas, issued an even more stringent rule of civil procedure when it comes to remote appearances. In February 2023, Texas promulgated Rule 21d of its state rules of civil procedure. The rule sets a default for in-person court appearances and prohibits courts from forcing parties and lawyers to appear remotely without consent or good cause for proceedings where oral testimony will be heard. Although not a complete prohibition against remote appearance, this new rule provides even more reason to seek party stipulation. This is similar to the authority found in the Texas Rules of Civil Procedure 199.1(b), which requires reasonable written consent for remote depositions.
Stipulations also play a role in remote appearances in Georgia. In April 2023, the Supreme Court of Georgia issued a court order to amend the Uniform Rules of Magistrate Courts of the State of Georgia, changing Rule 15 to allow virtual events and court proceedings upon consent between the parties and authority by the court. However, this amendment goes even further by recognizing instances where virtual events may occur despite the absence of consent. Pursuant to this court order, all civil matters, except civil trials, may be conducted virtually. This authority extends to depositions as well and is similar to language found in Georgia’s rules of civil procedure for remote depositions pursuant to GA Code § 9-11-30(b)(4).
These examples demonstrate that, although different states may have varying approaches, the key to help ensure a remote appearance has not changed. When possible, seek a stipulation with opposing counsel to plan and conduct a remote proceeding. Even where remote appearance is not granted as a matter of right, rules often recognize the power for parties to mutually set their own course for safe, effective remote civil proceedings. When it comes to depositions, look no further than Readback, to empower your remote experience. Readback offers Active Reporting to provide luxury benefits such as certified transcripts in one day and access to near-time text in seconds during the proceeding at low, flat rates. Visit our website to learn more about Active Reporting before scheduling your next deposition.
* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
