By Michael S. Wrona
Recently, I prosecuted a case on behalf of a housing authority that required a full remote trial with witnesses and exhibits. From the experience, I can say that participation in a remote trial is very different than a trial conducted in a courtroom.
The defendant-tenant had committed multiple violations of the Authority’s pet policy. The violations included having more than one dog, refusing to clean up after her dogs, and refusing to leash the pets when outside. The tenant was provided multiple opportunities to cure her violations but was steadfast in her refusal to do so – even after the housing mediator told her she was risking her housing by failing to comply.
The case had been pending since March, when the State went into lockdown and the courts closed. When the courts did reopen, the pleadings were closed and a mediation was scheduled. When the mediation failed, the Court scheduled this matter for a remote trial, to be held three days before Christmas.
Given that this matter had been pending for several months, I was intent on keeping the matter moving. I was dubious that a court would enter judgment against a tenant just days before a major holiday!
As soon as the trial was scheduled, our preparations began with a close review of the procedures set forth in the “Connecticut Guide to Remote Hearings,” issued due to the pandemic by the Superior Court. The procedures are not actually suggested guidance to litigants, but rather rules that must be followed when conducting a remote trial. Failure to abide by the rules can result in, at best, the court being irritated, or at worst, the dismissal of one’s case!
The first requirement in the Guide that differs from usual procedure is providing to the opposing party the exhibits you intend to use at trial. Typically, this is only done if the opposition requests those documents in written discovery, which is rare in most housing cases. However, for remote trials, the opposing party needs the documents in advance, so they can follow along with your direct examinations and/or object to any documents they feel are not admissible. This, unfortunately, gives them an opportunity to educate themselves about your case, witnesses, and trial strategy.
We followed the Guide and provided the exhibits to the defendant via overnight mail, as we were unaware of any electronic mail address for her. We also wanted to ensure there could be no claim that she had not received them and we wanted there to be no doubt that we had complied with the requirement. In normal times, the Court would have parties confer about exhibits on the day of the trial, just before it is to commence, to determine if there are any that can be admitted by agreement. However, the Guide requires this to take place beforehand for remote trials. I initiated the call with the defendant; she did not consent to any exhibits, but I met the requirement by attempting to have the conversation.
Next, subpoenas needed to be served on the two animal control officers, as they had witnessed some of the tenant’s violations and created incident reports. The Guide states that subpoenas should include language that the trial will be conducted remotely, and the subpoenaed party does not need to appear at Superior Court at the time and date listed. The subpoenas must also inform the witness that the trial will be conducted using Microsoft Teams and the information for attending the trial will be provided once received by counsel. Lastly, the witness is instructed to provide their contact information to counsel, so the instructions for attending the trial can be forwarded.
The Guide makes clear that all witnesses should appear visually and not just telephonically. This presented challenges: we would be responsible for ensuring that our witnesses had or could be provided the ability to attend the trial remotely using Microsoft Teams. We did follow up with the officers after service of the subpoenas, and they assured us they would work with their IT department to attend the trial visually from the police department. In addition to the officers and client, we planned to use two other witnesses – another tenant and a commissioner from the Authority’s Board. For these two individuals, we had two options: set up a laptop in a room at my firm and have the witnesses testify there or set up a laptop in one of the client’s offices. We decided to use a room at the client’s offices, as it would involve almost no travel for the witnesses. (As an aside, this approach consequently required less convincing to get those witnesses to testify since travel time was minimal.) Prior to trial, the client and I went through a Microsoft Teams preparation session to ensure access would be possible for all three witnesses testifying from their offices, and to ensure that I could share my screen to display the trial exhibits at the appropriate time.
I also could not help but speculate: what would the Court do if the pro se defendant only appeared telephonically? We had no control over that aspect of the trial.
At trial, we had five witnesses testify from three locations, while I conducted the trial from a fourth (my office). The Court’s procedures governing remote hearings provide that every witness testifying must be alone in the room to avoid the possibility that someone may coach them off camera. Our tenant-witness testified first and then left the room so the commissioner could testify. When it came time for the officers to testify, I was able to share my screen and show them their incident reports.
Our earlier question about what the Court would do if the pro se defendant did not attend visually was answered when she, in fact, only appeared telephonically. We learned that the requirements as set forth in the Guide are difficult to enforce in this regard. The defendant’s lack of visual appearance prohibited the Court from observing body language and mannerisms and, therefore, may have impaired the Court’s ability to determine her truthfulness. Moreover, the defendant was not to have anyone in the room with her as she testified, yet it was clear that she was being coached, at least partially, from one of her witnesses who kept whispering to her to “object” to our exhibits (all her objections were overruled). Later, when she began her testimony, the Court did admonish her that her testimony needed to be hers alone and she should not have anyone in the room with her.
The trial turned out to be a success for two reasons. First, the technology worked as intended. All our witnesses were able to be seen by the Court and to review relevant exhibits. Second, and more importantly, the Court ruled in our favor—yes, even just a few days before Christmas.
Obviously, a Court can better control the proceedings when all parties and witnesses are in the same courtroom. In remote trials, witnesses calling in cannot be observed by the Court, creating challenges for determining truthfulness and for preventing a defendant from being coached in their testimony. In addition, the sharing of exhibits before trial gives the benefit of discovery to the opposition. And while we were lucky with regard to technology, issues with Teams or Zoom (used by federal courts) during hearings have occurred.
I can absolutely see a place for these remote technology platforms in our post-pandemic world, such as in status conferences, in hearings that do not require testimony or evidence, or in obtaining testimony from a lone out-of-state witness. However, it is doubtful the in-court trial will ever become superfluous. In addition to the issues cited above, there is something about the solemnity and reverence for the inside of a courtroom that compels witnesses and counsel to conduct themselves in a manner befitting their environment, and that cannot be replaced.
Michael Wrona practices in the areas of landlord-tenant, bankruptcy, and commercial litigation. His clients include banks, housing authorities, private landlords, lenders, creditors, and insurance companies. He can be reached at wrona@halloransage.com or 860.297.4626.