Is the expediency of proceeding remotely worth the conceivable risks?
By: Robert M. Wexler
As COVID-19 continues to ravage, its effects have been felt in all walks of life. Like others who have had to adapt to meet the needs of clients, labor lawyers have turned to technology to supplement our traditional means of delivering services. Ten months ago, few people knew of Zoom, and even fewer would have imagined it would so quickly morph into a widely used verb that permeates our daily vernacular (“Do you want to Zoom this afternoon?”). Similar products like Teams, WebEx, GoToMeeting and Google Meets have allowed parties to “meet” remotely, when in-person meetings are unadvisable. But what about conducting full-blown administrative evidentiary hearings using these remote meetings tools? Is it advisable? What are the pitfalls?
With the initial “stay at home” mandates, most pending hearings were temporarily postponed by weeks or months. But as reality set in, it became apparent that pending administrative trials, which routinely require multiple people be in one room – litigants, investigators, witnesses, lawyers, a court reporter and a hearing body – may need to be postponed indefinitely, especially if one or more of the necessary participants was deemed at “high risk” of succumbing to the worst effects of the virus. To address the growing backlog of pending cases, some hearing bodies began offering litigants the opportunity to conduct remote “virtual” hearings. Others, such as the Los Angeles County Civil Service System, have even attempted to mandate participation in remote evidentiary hearings.
In the case of Los Angeles County, that decision, made unilaterally and without acquiescence of the affected unions, is the subject of a legal challenge. Unions should know that any substantive changes to the administrative disciplinary appeal process is likely a mandatory subject of bargaining. (Phillips v. State Personnel Bd. (1986) 184, Cal.App.3d 651; Cerini v. City of Cloverdale (1987) 191 Cal.App.3d 1471.) Any mandate to participate in a remote hearing, where the rules either expressly or implicitly provide for an in-person hearing, is likely going to require the employer to meet and confer in good faith with the recognized employee organization and either reach agreement or exhaust the applicable impasse processes. Thus, an employee organization faced with an employer proposal to move to remote hearings should, minimally, avail itself of the opportunity to meet and confer, if for no other reason than to address the issues identified below.
Whether the labor union of an employee facing a disciplinary appeal hearing voluntarily agrees to a remote hearing is a matter that must be decided on a case-by-case basis, after consultation with legal counsel. However, serious consideration should be given to some of the limitations necessarily applicable to remote hearings, which could significantly compromise parties’ examination and cross-examination of witnesses and impact the outcome. Some of the issues that should be addressed, to the extent possible, are:
- Ensuring witness seclusion. A witness who is testifying at a remote location is not improperly reading a script, accessing documents, or being coached remotely (e.g., text message) by someone else in the same room as the witness who is not visible on camera;
- Compelling “attendance” of a witness remotely. Witnesses, especially adverse witnesses, must have the means to navigate the remote meeting program, have computer access with adequate internet bandwidth, and be willing and competent enough to overcome the myriad internet issues that could occur mid-hearing;
- Introducing evidence. Planning how to introduce and share evidence when the witness, parties, hearing body and court reporter are each at separate, remote locations presents advocacy challenges. Mandating advance exchange of exhibits may address this issue somewhat, but doing so may significantly impact trial strategy and due process. For various reasons a party may not want to grant the hearing body advance access to evidence that is ultimately inadmissible, or may wish to withhold certain evidence until the hearing has begun. Also, there is no meaningful way to “surprise” an adverse witness on the stand with evidence on cross-examination if the evidence must be sent to the witness in advance of the hearing;
- Impeachment evidence. Using impeachment evidence effectively is significantly impacted as there are limited ways to provide the impeachment evidence to all the relevant parties in the middle of a witness’s testimony, unless all participants agree to monitor their email during the hearing or documents can be displayed and shared on video screens;
- Attorney-client communications. Attorneys and their clients must pre-plan how they will confer with each other during the hearing and out of earshot of the opposition or hearing body;
- Use of physical evidence. Testimony sometimes requires the use of demonstrative, physical evidence (i.e., baton, handcuffs, gun), and sometimes witnesses must meaningfully “act out” physical actions. Both presentations of evidence are significantly impacted by a remote hearing;
- Witness credibility. Lastly, and most critically, viewing a witness through a screen, when the witness’s face is front-and-center and appears larger than real life, can significantly impact a hearing body’s credibility assessments. Witnesses must be coached to mind their presence and facial expressions more than ever.
The above list is not intended to suggest that remote hearings per se impair justice or should be avoided. To the contrary, this author has, in consultation with his clients, agreed to conduct certain hearings remotely. This article is meant only to advise associations of their right to meet and confer over mandates to utilize remote hearings and to suggest that they consider each of the above issues – at least – in determining whether the expediency of proceeding remotely is worth the conceivable impacts to a case.
About the author
Robert Wexler is the managing partner of the firm’s Southern California practice. He has been representing public employee associations and their members for over 25 years and has represented some of the largest law enforcement and firefighter unions in California.
RLS partner Ken Yuwiler provided meaningful input for this article.