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In D.M.R. v. M.K.G., a recently published (precedential) decision, the Appellate Division wrote an opinion on an appeal of a granted Final Restraining Order finally speaking to issues with trying cases via ZOOM or other similar platforms and, in so doing, held that such issues arising during the subject trial deprived the Defendant of due process.
In a matter that was argued just prior to the onset of the Covid-19 pandemic-related shutdown, the issue of a witness appearing virtually to give testimony was argued before by this firm before the Appellate Division. No one could have possibly known at the time how prophetic the Appellate Division’s decision in Pathri v. Kakarlamath, 462 N.J. Super. 208 (App. Div. 2020), would prove to be. In that case, as Judge Whipple pointed out in D.M.R., it was acknowledged that “our rules provide little real guidance” as to the request for a witness to testify virtually. Fast forward about a year-and-a-half later, and as a result of the COVID-19 pandemic, virtual court appearances have become a staple of the practice of law in New Jersey and elsewhere, and more particularly in the realm of domestic violence/restraining order hearings. In that area, the use of virtual platforms has been regularly utilized not just for court appearances, but for actual trials.
The problems inherent in conducting any type of factual evidentiary hearing utilizing this technology are evident and have been well-chronicled. They include: interruptions in the audio and video, lagging or intermittent internet connections, excessive background noise, the inability of counsel to be in the same room with the litigant and problems in the presentation of evidence, among other. Nevertheless, as quite aptly stated in D.M.R., “trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge,” and as such, trials have continued in earnest. For example, this writer has spent countless trial days prosecuting and defending restraining orders in New Jersey over the past year via virtual platforms.
However, while the beat goes on, so to speak, each trial demonstrates the inevitable issues of conducting a trial in this manner. But it was not until Judge Whipple’s decision in D.M.R., that those issues were finally addressed by way of precedential opinion and as a result, a Final Restraining Order was actually overtured on appeal. While there existed various procedural foibles in the trial of this matter, not the least of which was the Plaintiff being coached by his mother who was in the same room during his testimony, the real takeaway from Judge Whipple’s opinion came in the following prefatory remark:
However, … the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom. Through that lens we address this appeal.
It is through that lens that we should expect the bench’s scrutiny of litigants testifying via virtual platforms to increase, and rightly so.
Of course, perhaps the truest lesson learned here is the need for competent counsel at these hearings. The ramifications of a restraining order are severe and not something that should be taken lightly. In that vein, M.K.G.’s decision to proceed without an attorney proved costly, as surely an advocate practiced in the art of virtual trials would have objected to the manner in which the Plaintiff’s testimony was presented with another witness who was scheduled to testify (Plaintiff’s mother) being present in the same room and actually interrupting his testimony to correct him. Obtaining competent counsel may have saved the Defendant the cost of an appeal. It is always best to seek experienced counsel to prosecute or defend restraining orders.