Coincidentally Timely – New Jersey Appellate Division’s New Guidance Permitting Remote Testimony at Trial


Over the past two months, the practice of law has shifted to rely heavily on the use of technology. Communication internally, with clients and with the court is almost exclusively conducted via telephone or videoconference. But the New Jersey Court Rules do not provide clear guidance on the use of video testimony at trial — it is not expressly permitted nor is it expressly prohibited, leaving a gap in interpretation and application. Recently in Pathri v. Kakarlamath, A-4657-18T1 (App. Div. Jan. 23, 2020), the New Jersey Appellate Division picked the perfect time to get “plucky and adventury” and considered a party’s request to testify by video. The opinion clarifies that video testimony is acceptable during trial if warranted by exigent circumstances, and sets forth seven factors for courts to consider. Decided only weeks before the state underwent lockdown due to COVID-19, the court’s analysis is timely to say the least.

Background

Pathri was a matrimonial matter involving a plaintiff who moved back to India after filing suit, and a defendant with two minor children who reside in Maryland. Plaintiff requested to testify via video from India when he could not obtain a visa to attend trial scheduled for June 2019 in New Jersey. The trial court denied the motion, finding it would inhibit the court’s ability to assess plaintiff’s testimony and credibility. On appeal, the Appellate Division noted the lack of guidance from the New Jersey Court Rules on the use of video testimony, and took it upon itself to shed some light on the issue.

Before Pathri, the state’s leading authority on video testimony was a case from 1988, Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App. Div. 1988). In Aqua Marine, a contract dispute, the court was concerned that the factfinder would not be able to ascertain the credibility — or even the identity — of the witness via telephone. The opinion laid the groundwork to permit telephone testimony only in “special circumstances in which there is either exigency or consent and in which the witness’ identity and credentials are known quantities.” As pointed out by the court in Pathri, in the more than 30 years since Aqua Marine was decided, the options for virtual testimony extend well beyond the telephone, rendering these concerns somewhat obsolete. Still, the court “found helpful” that Federal Rule of Civil Procedure 43(a), which specifically permits trial testimony via contemporaneous video “for good cause in compelling circumstances and with appropriate safeguards,” sets a standard similar to the “exigency” referred to in Aqua Marine.

With this backdrop, the New Jersey Appellate Division provided the following seven factors for judges when considering applications for video testimony:

Amidst these factors, judges also must be mindful of New Jersey Rule 1:1-2, which states the court rules are to be “constructed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” Further, the opinion states judges are free to exercise their discretion to impose appropriate conditions for the testimony (e.g., the size and number of monitors or specifications on the framing of the video) and to inspect the clarity of the audio and video. The court suggests copies of documents that the parties expect to show to the witness be forwarded to the witness’s location in advance. The decision also does not foreclose a judge’s discretion to deny requests for video testimony if conditions cannot be met.

Chief Justice Rabner’s March 12, 2020, Notice to the Bar indicated that the state would be moving much of its business remote by the use of phone and video. As litigation adapts to become virtual amid the COVID-19 crisis, these new guidelines from the New Jersey Appellate Division will be a helpful outline for video testimony in the coming months and beyond, but it is too soon to tell how this will play out in real time.


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National Law Review, Volume X, Number 108