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Superior Court makes right move on Zoom hearings

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Back at the beginning of the pandemic, court leaders had to scramble to find ways to allow critical business to proceed while protecting court employees and the public. That required a crash course in the use of Zoom and other teleconferencing platforms.

There were certainly bumps along the way. But the abrupt shift did illuminate just how inefficient the “old way” of doing things really was. And while some members of the bar rightly stressed the importance of in-person hearings for some matters, particularly in criminal cases, lawyers overall expressed a desire to see continued expansion of the efficiencies that virtual hearings have enabled.

The Superior Court has now responded to that desire with Standing Order 1-22, which went into effect earlier this month. The order dramatically expands the categories of civil and criminal proceedings that are “presumptively” to be conducted by Zoom from the original three types — bail review hearings; non-testimonial hearings for review of dangerousness determinations; and non-evidentiary hearings in civil matters involving incarcerated persons — to 16 categories. 

On the criminal side, there will now be a presumption of virtual hearings for seven categories. These include bail hearings for those in custody who waive a right to physical presence in court; bail reviews and non-testimonial hearings for reviews of G.L.c. 276, §58A, dangerousness determinations for defendants in custody; and hearings on G.L.c. 276, §58A, motions in which no witnesses are called. There will also be a presumption of Zoom hearings for scheduling, pretrial, probation status and certain discovery conferences.

On the other hand, in-person hearings are presumed for certain core proceedings, including plea hearings, trials and sentencing hearings, and there is no presumptive method for conducting arraignments.

On the civil side, the new standing order expands the use of virtual hearings even further, to include discovery disputes; motions to compel and motions for protective orders; initial case management, scheduling and pretrial conferences; motions to dismiss, amend complaints, obtain a default judgment or set aside a default; and medical malpractice tribunals. There are also instances in which in-person hearings are presumed, including motions for summary judgment and final trial conferences.

While some future tweaks to the standing order might be helpful, similar to the guidance the Appeals Court has set forth on how to request a remote hearing and examples of acceptable and unacceptable reasons for making such a request, that doesn’t take away from the work that was done here.

And the final order also makes clear that the new videoconferencing approach isn’t absolute — judges have the authority to sidestep presumptions in certain circumstances.

What’s particularly admirable here is that the court didn’t implement these decisions from the top down. Instead, it looked to a survey conducted last year by the Supreme Judicial Court and the Trial Court. The Massachusetts Attorney Survey on the Future of Virtual Technology in the Courts showed widespread support in the bar for increased use of virtual hearings, with 85 percent of Superior Court practitioners expressing a favorable view of the post-pandemic use of videoconferencing in civil cases.

Criminal law practitioners were a bit less enthusiastic, but even then, more than 70 percent of respondents indicated support for the increased use of teleconferencing, with survey respondents pointing to the cost and time savings, as well as the ways in which virtual hearings increase access to justice by allowing clients with limited access to transportation or health issues to participate more easily.

Court leadership has faced criticism in the past for moving forward without sufficient input from interested stakeholders. But in this instance it has taken the changes for the better that arose out of the pandemic and expanded on their use in a uniform way, while working hard to address the suggestions and concerns raised by members of the bar. Leadership deserves praise for a job well done.

 

Massachusetts Lawyers Weekly’s Editorial Advisory Board provides knowledge and guidance for the editorials that appear on this page. The board is an advisory panel only, with no official voting or participation record. The input from the board is a tremendous resource to Lawyers Weekly; however, the editorials represent the position of the newspaper and its editorial staff, not the members, nor any given member, of the board.

BOARD OF EDITORS: Robert J. Cordy, Boston; Sophia L. Hall, Boston; Martin W. Healy, Boston; Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Regina M. Hurley, Boston; Shiva Karimi, Boston; Marsha V. Kazarosian, Haverhill; Andrea C. Kramer, Boston; Renee M. Landers, Boston; Richard L. Levine, Boston; Elizabeth N. Mulvey, Boston; Eric J. Parker, Boston; C. Max Perlman, Boston; Patricia M. Rapinchuk, Springfield; Martin R. Rosenthal, Boston; Carol A. Starkey, Boston



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