Thursday, March 6, 2014

When Can A Witness Appear by Phone or Video in a Florida Court Hearing?

Historically, Florida law has allowed a party or witness to testify by phone or video conference only when the parties agreed.  Florida Rule of Judicial Administration 2.530(d)(1) provides that a "county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment."  

Case law interpreting this rule held that, under Florida Rule of Judicial Administration 2.530(d)(1), a trial court's only has discretion to allow testimony to be taken over the phone if all of the parties consent.  See Cole v. Cole, 86 So. 3d 1175 (Fla. 5th DCA 2012).  If the judge allowed a party to testify by phone over the objection of another party, the trial court committed error.   See Cole, 86 So. 3d at 1176 (citing S.A. v. Dep't of Children and Family Servs., 961 So. 2d 1066, 1067 (Fla. 3d DCA 2007)).  Although many judges thought that they had some discretion to allow telephonic appearances under the Rules of Judicial Administration, there was simply no such discretion.  See M.S. v. Dep't of Children and Families, 6 So. 3d 102, 103 (Fla. 4th DCA 2009).

In civil cases, the Florida Supreme Court recently changed the law governing witness testimony via telephone and video.  Florida Rule of Civil Procedure 1.451, titled Taking Testimony, is effective January 1, 2014.

The general rule remains that, when testifying at a hearing or trial, "a witness must be physically present unless otherwise provided by law or rule of procedure."  See Fla. R. Civ. P. 1.451(a).

Under Rule 1.451(b), however, the court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (i) by agreement of the parties or (ii) for good cause shown upon written request of a party.  The written request must give reasonable advance notice.  The request must also contain "the substance of the proposed testimony and an estimate of the length of the proposed testimony."  In considering sufficient good cause, the court must weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

For purposes of Rule 1.451, the term "communication equipment" means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communications equipment must make the witness visible to all participants during the testimony.  For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice.  See Fla. R. Civ. P. 1.451(c).

Florida Rule of Civil Procedure 1.451 does not relax the traditional "notary requirement" for telephonic or video testimony.  Testimony may be taken over the phone or by video only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.

According to the committee notes for Florida Rule of Civil Procedure 1.451, in determining whether good cause exists, the trial court may consider the following factors:
  • The type and stage of proceeding, 
  • The presence or absence of constitutionally protected rights, 
  • The importance of the testimony to the resolution of the case, 
  • The amount in controversy in the case, 
  • The relative cost or inconvenience of requiring the presence of the witness in court, 
  • The ability of counsel to use necessary exhibits or demonstrative aids, 
  • The limitations (if any) placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor;
  • The potential for unfair surprise;
  • The witness’s affiliation with one or more parties, and 
  • Any other factors the court reasonably deems material to weighing the justification the requesting party has offered in support of the request to allow a witness to testify by communications equipment against the potential for prejudice to the objecting party. 
If the factors weigh against audio testimony, the court should consider the cost and availability of contemporaneous video testimony as an alternative to permitting audio testimony.  In other words, with the advance of technology, video is widely available and may be a preferable medium for permitting testimony.

Notably, the Florida Family Law Rules of Procedure do not presently include a counterpart to Rule 1.451.  In other words, the Family Law Rules do not provide the same discretion allowed in civil cases.  This may cause confusion among family law parties, practitioners, and judges.  While telephonic and video testimony will presumably become more common in civil cases, these advances in technology were not initially adopted by the Family Law Rules Committee.  The Family Law Rules committee acknowledged in its January 2014 meeting that this inconsistency between the civil rules and the family rules was likely to create confusion.  As a result, the Family Law Rules Committee voted unanimously to send proposed Rule 12.451 of the Family Law Rules of Procedure to the Florida Supreme Court.  The proposed rule may be sent to the Florida Supreme Court as an out-of-cycle amendment.

Until Family Law Rule of Procedure 12.451 is adopted, family law cases are still governed by the Rules of Judicial Administration.

Under Rule 2.530 of the Florida Rules of Judicial Administration, a judge may, upon the court’s own motion or upon the written request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference. A judge must give notice to the parties and consider any objections they may have to the use of communication equipment before directing that communication equipment be used.  Subject to certain exceptions, the trial judge has discretion when deciding whether to allow a party to appear by phone or video. 

Rule 2.530 mandates that telephonic appearances be allowed under certain circumstances.  When the hearing is set for 15 minutes or less and a party gives reasonable notice and makes a written request to appear by phone or video, the judge must grant the request absent a showing of good cause to deny the same. 

With respect to testimony at a longer hearing, Rule 2.530 provides that a county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow the testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure. 

A party seeking to present testimony by phone or video must, prior to the hearing or trial at which the testimony is to be presented, contact all parties to determine whether each party consents to this form of testimony.  The party seeking to present the testimony shall move for permission to present testimony through communication equipment, which motion shall set forth good cause as to why the testimony should be allowed in this form. 

Testimony may only be taken by phone or video if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.  Many practitioners still fail to have a notary present when their witness is appearing via phone or video.  

If the testimony to be presented utilizes video conferencing or comparable two-way visual capabilities, the court in its discretion may modify the procedures set forth in this rule to accommodate the technology utilized. 

If you have questions about presenting your case in family court, please contact an experienced Florida family law attorney.