Starting in July, all Wisconsin courts will be allowed to hold remote proceedings under a recent petition granted by the Wisconsin Supreme Court.
Effective July 1, “court may be held with the judge and any participants appearing from a remote location using telephone or videoconferencing technology subject to ss 885.50 to 885.64 and constitutional requirements,” according to the court’s opinion, which was handed down on April 21.
Before approving the petition, the court amended some of its language to change “place” to “location” and to say that telephone or videoconferencing hearings will be open to the public in some circumstances.
The petition was initially filed in August 2021 by Randy Koschnick, director of State Courts. Comments in favor of the petition came from State Bar President Cheryl Furstace Daniels, Barron County Circuit Court Chief Judge Maureen Boyle and Carlo Esqueda, Dance County clerk of circuit court. Comments in opposition came from Wisconsin State Public Defender Kelli Thompson and Jonas Bednarek, Marcus Berghahn, Patrick Fiedler, Stephen Hurley, David Saperstein, Sarah Schuchardt and Catherine White of Hurley Burish.
Following a public hearing in February, the high court held a closed administrative conference and voted to grant the petition.
Attorney Jason Abraham of Hupy and Abraham said he never imagined the court system would come nearly to a standstill amid a global pandemic.
“I never fathomed we would be in a situation where everything shut down. If we don’t learn from it, we’d be silly,” said Abraham as he spoke in favor of allowing virtual court proceedings to continue.
Speaking from the perspective of a personal-injury lawyer, Abraham said he understands the difficulties a virtual system will pose for litigants who have no representation.
“When you have to change something this dramatically, there’s no question that in this arena this process is going to be difficult, it’s not impossible though,” he said.
Abraham insisted the legal profession should adapt to the situation and learn from the past.
“Justice delayed is justice denied makes this a really good solution that if something happens that we can’t go to the courthouse, this allows us to do things,” said Abraham. “There were a lot of things we used to go to the court for that we probably didn’t have to. This is following with the times.”
Though the profession may be merely changing with the times, Josh Johanningmeier of Godfrey & Kahn said virtual hearings shouldn’t be the preference.
“Everyone knows it can work, but is it necessarily the way we should work with the court? On the whole I prefer to do a little virtually as we can. I do understand the need for it,” Johanningmeier said.
On allowing telephone call-ins for various matters in court, Johanningmeier said, “From a litigator standpoint, a witness by telephone is about a least effective way to put a witness on. It is a mode of last resort. When you can’t see the person who’s talking at all and you’re simply hearing their voice, you are not getting anywhere close to their credibility, demeanor, how seriously they take the proceedings.”
Johanningmeier said he’s also concerned that many rural places lack the sorts of technology that big cities take for granted.
Echoing the same concern, Abraham said, “I think we really have to focus our energy on people who may not be able to do the same and make sure they get what they need since lawyers have all the necessary technology.”
“Civil or criminal, I don’t look forward to more virtual hearings,” Johanningmeier said. “We’re trading convenience and ease of administration for the formality of the courtroom. Participants whether businesses or individuals, seeing the formality of the courtroom really makes a difference, reducing it to video, whether we planned for it or not, is going to take the edge off. Convenience won out here over what is truly the best way to manage a hearing or a trial. Time will tell how much use this will get and how normal it will become.”