SB 241: Addressing the court backlog create by COVID-19

Due to the unforeseen coronavirus pandemic, thousands of delays and backlogs involving civil cases plagued the California state court system. Circumstances worsened following the 2020 winter COVID-19 surge, which forced many of California's county superior courts to further delay in-person proceedings. Many of the courts that were impacted were asked to immediately address the issue to ensure access to justice for all Californians, and as a result, the only feasible remedy was to turn to remote court hearings, citing public health and safety reasons. The order requiring courts to hold civil proceedings remotely was set to end following the expiration of the state's COVID-19 emergency orders. The question of whether to extend courts' use of remote technology beyond the expiration of the emergency orders remained unanswered, but a high priority for those in the legal industry. To enable a permanent pathway for the use of remote technology within court proceedings, state legislators and attorneys introduced Senate Bill 241.

SB 241, authored by Sen. Thomas Umberg and signed into law September 2021 by Gov. Gavin Newsom, authorizes a party to appear remotely and the court to conduct conferences, hearings, proceedings and trials in civil cases, through the use of remote technology until July 1, 2023. The court is given the authority to require a party or witness to appear in person at conferences, hearings, proceedings and trials in civil cases if a specific condition under Code of Civil Procedure Section 367.75 (b)(1)-(6) is present. Moreover, the bill requires courts to electronically serve documents on a party that has agreed or consented to accept electronic service. It would also authorize, until January 1, 2024, a witness in a proceeding to appear and give testimony by remote electronic means that provide a live video connection to the court. There remain open questions about when witnesses can appear remotely and if the court has discretion to allow experts to appear remotely over the objection of opposing counsel. Prior to COVID-19, a party was allowed, with authorization, to attend a hearing by telephone utilizing tools such as CourtCall or LA CourtConnect, but courts had not permanently approved the use of remote technology as a manner of appearance for many types of proceedings after the pandemic.

The Judicial Council is currently considering rules to implement SB 241. While the bill is supposed to allow remote appearance in most hearings, either by video or audio, there are open questions if a court can require parties and their lawyers to appear remotely. This is particularly true when it comes to trials and evidentiary hearings. The proposed Rule of Court appears to give wide discretion to the court to require in-person appearances at hearings plus gives the court wide discretion to order remote appearances at trials and other evidentiary hearings. SB 241 would allow local courts to make its own rules leaving a possibility of a lack of uniformity throughout the state. There remain many open questions that will likely require more legislative intervention in 2022.

This bill came with strong opposition from courtroom employees and the labor unions that represent them, claiming it would decrease employment of their members and that courtroom employees had been previously shut out of remote proceedings. They also warned that glitchy technology could threaten the accuracy of court transcripts. To combat that issue, SB 241 would require the court to have a process for a party, court reporter, court interpreter, or other court personnel to alert the judicial officer of technology or audibility issues.

In many ways the COVID-19 pandemic forced us to jump forward at least a decade in the use of technology. Just as CourtCall allowed lawyers to appear by telephone for many hearings, saving countless hours of time, video appearances and remote depositions were introduced, exponentially saving more time and making lawyers lives easier. Regardless of the differing opinions regarding remote or in-person court hearings, the COVID-19 pandemic revolutionized the way the legal profession views the justice system and how it operates. Having remote court access was essential in helping reduce the courts' tremendous case backlog during this tumultuous time. Not only did remote hearings help many have access to justice by making it easier and faster for participants to appear, but it was also cost and travel efficient, and it allowed people with disabilities to have equal access to justice. The use of such technological advances would allow millions of Americans to access justice while also providing courts with a mean to prepare for future unforeseen disruptions. The likelihood of these adjustments being permanent looks to be increasing as California's courts continue to expand remote court access. Look in the future for more expansion and legislative changes. 