Dear Cassie: Are courts still open in light of COVID?
Dear P.R.: Yes, they are, albeit in a different form than they were pre-COVID.
In light of the COVID-19 pandemic and resulting health risks, the overwhelming majority of Superior Court family law proceedings are currently being conducted virtually, via “Zoom,” “Microsoft Teams,” or some other video conferencing service. This includes: Case Management Conferences, Motions, settlement conferences, and even trials. Occasionally, these types of proceedings are conducted telephonically. On rare occasions, in person appearances in Court are permitted and/or required, inclusive of health protections including mask wearing.
There are positives and negatives to conducting these proceedings virtually, instead of in person. The most notable positive is, of course, the assurance to the maximum extent possible of public health and safety. In addition, virtual proceedings in many fashions allows for more ready access to the court system, obviating the need for travel, the transportation of trial materials, and related costs. This, in turn, frees up time for both attorneys and litigants.
Virtual proceedings are not without their downsides. From a procedural standpoint, virtual proceedings often have connectivity problems that can disrupt a streamlined proceeding. From a substantive standpoint, they also disallow for the intangible benefit of the judge or mediator being able physically to see, observe, and interact with the litigant and counsel. Many attorneys believe that this impairs the ability for a judge to make sufficient credibility assessments regarding litigants and witnesses, and detracts from the meaningfulness of trials and mediations. There are also concerns that the Constitutional right to confront witnesses (which is implicated in quasi-criminal matters such as domestic violence matters) is violated by virtual proceedings.
It remains to be seen whether virtual proceedings are here to stay, and will permanently replace in person proceedings. However, it is without question that courts, attorneys, and litigants are still figuring out how to transition to a virtual world.
If you are in the midst of a family law matter involving a virtual proceeding, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.