New Commercial Division Rule to Permit Virtual Evidentiary Hearings and Bench Trials

On October 19, 2021, Chief Administrative Judge Lawrence K. Marks promulgated new Rule 36 of the Commercial Division Rules, which expressly permits evidentiary hearings and bench trials to be held virtually. The new rule, which becomes effective December 13, 2021, now expressly permits what most Commercial Division justices were already doing--holding hearings and bench trials virtually. The rule also permits the court to allow a witness or party to participate in an evidentiary hearing or bench trial virtually, even if the hearing or trial is otherwise being held in person. The rule is limited to instances in which all parties consent, and expressly does not address (one way or another) the issue of when all parties do not consent. The new rule is as follows:

Rule 36. Virtual Evidentiary Hearing or Non-jury Trial.

(a) If the requirements of paragraph (c) of this Rule are met, the court may, with the consent of the parties, conduct an evidentiary hearing or a non-jury trial utilizing video technology.

(b) If the requirements of paragraph (c) of this Rule are met, the court may, with the consent of the parties, permit a witness or party to participate in an evidentiary hearing or a non-jury trial utilizing video technology.

(c) The video technology used must enable:

i. a party and the party's counsel to communicate confidentially;

ii. documents, photos, and other things that are delivered to the court to be delivered to the remote participants;

iii. interpretation for a person of limited English proficiency;

iv. a verbatim record of the trial; and

v. public access to remote proceedings.

(d) This Rule does not address the issue of when all parties do not consent.

The attorneys at Schlam Stone & Dolan LLP have handled many virtual hearings, trials, and other proceedings since the start of the pandemic. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning virtual court appearances or this new rule.