Vt. R. Civ. P. 43.1
The court has discretion to conduct remote or hybrid nonevidentiary proceedings. In exercising its discretion under this subdivision, the court may, but is not required to, consider the factors in subdivision (h).
Vt. R. Civ. P. 43.1
Reporter's Notes-2023 Amendment
Vermont Rule of Civil Procedure 43.1 was originally promulgated on May 1, 2019, effective August 5, 2019, to provide a uniform process for participation by audio and video conference. The COVID-19 pandemic reached Vermont less than a year later. The Governor of Vermont declared a state of emergency on March 13, 2020. By Executive Order, the Governor imposed limits on gatherings of persons to reduce the health risk to the public and limit the spread of the infection. The Supreme Court of Vermont issued Administrative Order No. 49 on March 16, 2020, and declared a judicial emergency. A.O. 49 temporarily modified court rules and operations to meet the Court's constitutional responsibilities while protecting the health and safety of court personnel, court users, and the public at large. The Court subsequently amended A.O. 49 numerous times to respond to the evolving course of the pandemic.
The initial and amended versions of A.O. 49 superseded certain provisions of Rule 43.1, allowing more widespread use of remote and hybrid proceedings. At the same time, the Judiciary obtained the necessary software and technical equipment to support these proceedings. Pursuant to A.O. 49, ¶ 5(e), the Court created the Special Advisory Committee on Remote Hearings to study, advise the Court about, and propose potential permanent rule changes governing remote participation in court proceedings. The 2023 amendments to Rule 43.1 are the result, in large part, of the Special Advisory Committee's study and analysis of the experience of members of the bar, judges, court staff, and members of the public with fully remote and hybrid proceedings. The Supreme Court is very grateful for the work of the Special Advisory Committee and its cooperation with the Civil, Family, Probate, and Criminal Rules Committees to produce these amendments. The Court is also appreciative of Emily Wetherell, Deputy Clerk of the Court, for coordinating these efforts.
The 2019 version of Rule 43.1 had five parts: (a) a general statement authorizing video or audio conference transmission from remote locations by agreement, on motion, or by the court's own motion, under the standards set forth in the subsequent sections of the rule; (b) definitions; (c) standards related to video conferences; (d) standards related to audio conferences; and (e) technical requirements. The rule differentiated between trials and other proceedings. The amended rule alters the existing structure by applying different standards for nonevidentiary and evidentiary proceedings, relaxing the timelines for requesting remote participation, and introducing the concept of hybrid proceedings.
The overall structure of the amended rule is as follows. Paragraph (a)(1) is added to establish a default of in-person participation. Subdivision (b) adds definitions for evidentiary proceeding, hybrid proceeding, and remote proceeding. New subdivision (c) addresses remote or hybrid nonevidentiary proceedings. Subdivision (d) provides the standards for remote or hybrid evidentiary proceedings. Subdivision (e) revises former (c)(4) regarding the judge presiding remotely. Subdivision (f) is new and sets out the requirements for the hearing notice. Subdivision (g) revises former (c)(5), previously entitled "Emergencies," to allow the court to make exceptions the rule's notice and time requirements in certain circumstances. Subdivision (h) includes the factors for a court to consider in determining if there is good cause to have an evidentiary remote or hybrid proceeding. The factors also guide the court's exercise of its discretion in determining whether to have remote or hybrid nonevidentiary proceedings. Subdivision (i), modeled on former (d)(5), addresses the conduct of the proceedings. New subdivision (j) provides that jury selection is governed by the standards for evidentiary proceedings. New subdivision (k) applies to civil stalking proceedings under 12 V.S.A. §§ 5131-5138 and sets a default of hybrid proceedings. Former subdivision (d), on technical standards, is relabeled as subdivision (l).
In general, under the amended version of the rule, the court has discretion to schedule remote and hybrid participation for nonevidentiary proceedings while evidentiary proceedings require a determination of good cause based on a consideration of the relevant factors in subdivision (h). The court may issue standing orders for categories of proceedings or provide for remote or hybrid proceedings on a case-by-case basis. The court can do this on its own initiative or based on a motion or stipulation of the parties. A more detailed discussion of these provisions follows.
Subdivision (a)(1) specifies that in-person participation is the default. For testimony in evidentiary proceedings, this mirrors V.R.C.P. 43, which states that the testimony of witnesses will be taken in "open court, unless otherwise provided by Rule 43.1." Paragraph (a)(2) deletes the reference to trial and instead refers to evidentiary and nonevidentiary proceedings. The amended rule refers to "some or all of the parties," to emphasize the use of hybrid hearings. The amendments delete reference to "the judge" since presiding remotely is covered by subdivision (e). Former (1)(A)-(C) are deleted and the procedures for motions, stipulations, and court-initiated orders are included elsewhere in the rule.
Subdivision (b) provides definitions. Paragraph (b)(2) is added to define an evidentiary proceeding as one in which testimony is taken orally. By extension, all other proceedings are nonevidentiary.
A hybrid proceeding" is defined in (b)(3) as one in which participants participate in person or remotely by video or audio conference. Experience during the pandemic demonstrated that, due to technical and financial constraints, some participants lack the resources or reliable internet connection to effectively participate remotely by video or audio conference. To ensure access to the courts, the rule explicitly recognizes the existence of and need for hybrid proceedings. Hybrid proceedings provide participants with maximum flexibility by allowing participants to choose whether to attend in person or remotely. When a hearing notice indicates that a proceeding will be hybrid, participants make their own decision about how to participate and are not required to notify the court or other parties in advance as to how they will participate in a hybrid proceeding. Notwithstanding this general choice, there may be instances where the court by order requires a witness, party, or other participant to attend a proceeding in a specific manner. For example, if a hearing is noticed as hybrid, a party may move to compel a particular witness to attend in person. If the court grants the motion, the resulting proceeding is still hybrid, but that witness no longer has a choice about how to participate. Similarly, a proceeding that is initially noticed as remote or in person may result in a hybrid proceeding if the court orders or permits one or more participants to attend in a particular manner.
The definition of "remote location," in former (b)(2), which required technical requirements to be met to preside remotely, is deleted as unnecessary given the general requirement to have technical standards under subdivision (l). New (b)(4) adds a definition for "remote proceeding" as one in which all participants take part by video or audio conference.
New subdivision (c) addresses remote or hybrid nonevidentiary proceedings. Under (c), the court has discretion to conduct remote or hybrid nonevidentiary proceedings. The rule allows remote participation when the technology is available and there is no countervailing interest. The court is not required to consider the factors in subdivision (h), but it may consider those factors to determine if a remote or hybrid proceeding is appropriate in a given circumstance. Under (c)(1)(A), the court on its own initiative may issue standing orders directing that certain categories of nonevidentiary proceedings be scheduled for remote or hybrid participation. For example, the court may order that all status conferences and pretrial conferences be hybrid proceedings. This allows all participants to choose whether to participate in person or through video and audio conference. Under (c)(1)(A), the court retains discretion to make exceptions to a standing order. Pursuant to (c)(1)(B), whether as an exception to a standing order or where no standing order exists, the court in a particular case may order that a nonevidentiary proceeding be remote or hybrid or that some or all parties, counsel, or other persons be required or permitted to participate in person or by video or audio conference. As explained more fully below, under subdivision (f), the hearing notice must alert the participants as to how they are permitted to participate.
Under (c)(2), the parties may stipulate or move for remote or hybrid participation. A motion or stipulation may request a particular kind of participation either when no order exists or as an exception to an existing order made at the court's initiative (either a standing or case-specific order). For example, where a standing order provides for a remote proceeding, the parties may move or stipulate that the proceeding be hybrid or that participation by all or some individuals be in person. Or, where there is no standing or case-specific order, the parties may request a remote or hybrid proceeding. The formal time requirements of the prior rule are not carried over. Instead, any motion must be served, and stipulation filed "reasonably in advance of the proceeding" to allow sufficient time for other parties to respond and for the court to assess the request.
New subdivision (d) addresses remote or hybrid evidentiary proceedings, and generally requires good cause. Under (d)(1), the court on its own initiative may issue standing orders or orders in a particular case providing for remote or hybrid proceedings. In determining whether to issue a standing order, the court is required to consider any relevant factors in subdivision (h) to determine if there is good cause. Many of the factors are case-specific and will not be relevant to the court's decision to issue a standing order. Other factors, however, could be considered, even for a standing order. For example, the court can generally assess the available technology, the air flow of the available in-person location, the complexity and nature of the proceeding, the length of the proceeding, and available measures to protect public health. Note that good cause relates to remote or hybrid proceedings and is not required for in-person participation. Under (d)(1)(A), the court retains discretion to permit or require in-person participation. The court may also make exceptions to a standing order in a particular case. Under (d)(1)(B), the court may issue case-specific orders for remote or hybrid participation based on a finding of good cause. It is expected that the court would provide the basis for a good-cause determination in the standing or case-specific order.
Under (d)(2), the parties may move or stipulate for a remote or hybrid proceeding or for a particular type of participation for some or all participants. The motion or stipulation may request an exception from a standing or case-specific order or seek remote or hybrid participation where no order exists. If there is a standing order for a remote proceeding, the parties may move or stipulate that the proceeding be hybrid-so parties can choose how to participate-or that some or all participants be in person. In addition, if a hybrid proceeding is set by standing order, the parties may move or stipulate that certain participants be required to attend or testify in a particular manner: in person or by video or audio conference. For example, if the court orders that a bench trial be remote, the plaintiff could move that the entire proceeding be in person or that a particular witness testify in person. The motion or the stipulation must demonstrate good cause for remote participation applying the factors in (h).
The higher standard of good cause is used for evidentiary hearings given the additional concerns around introduction of evidence, testimony of witnesses, communication between clients and lawyers, and assessment of credibility by judges and juries. Based on experience of remote and hybrid hearings conducted during the pandemic, common examples of good cause may include savings of time and money for one or more parties, particularly for testimony of witnesses in other states or countries, and protection of the health of a witness, a party, or counsel, or the health of a person for whom a witness or party or counsel is a caregiver. The advance filing and notice requirements of the prior rule are removed and instead a motion or stipulation must be filed "reasonably in advance of the proceeding." The court requires sufficient time to determine whether the technology meets the standards and whether there is good cause under the factors.
Former (c)(4) addressing the court presiding remotely is now subdivision (e). The provision is amended to allow the court to preside remotely for an evidentiary or nonevidentiary remote or hybrid proceeding without notice to the parties. When a proceeding is scheduled for in-person participation or a motion for an in-person proceeding is granted, the court must provide the parties with notice reasonably in advance of the proceeding that it intends to preside remotely. Presiding remotely became much more common during the pandemic and practice indicates that judges can effectively run hearings without being present in the courtroom. There are multiple reasons that judges may need to preside remotely, including covering proceedings in different counties and needing to isolate after exposure to COVID-19. Often judges and court staff do not know that a judge will preside remotely until close to the hearing date. The rule seeks to balance the need to provide notice to the parties with the flexibility required for judges and staff.
New subdivision (f) requires that a hearing notice specify whether a proceeding is in person, remote, or hybrid and describe the process for requesting an alternate means of participation. This is important as not all participants will necessarily be aware of existing standing orders.
Former paragraph (c)(5) was entitled "Emergencies," and allowed waiver of some of the rule's time requirements based on "unanticipated and unintended events." The provision is now subdivision (g) and is entitled "Exception," to signify that not all circumstances that meet the standard will be emergencies. As amended, it allows the court to make exceptions to the notice and time requirements of the rule and continues to use the standard of "unanticipated and unintended events." It is expected that there will be circumstances that arise soon before, or even at, a proceeding that merit remote or hybrid participation. This subdivision provides the court with the necessary flexibility to consider these late requests.
Former (c)(6) is relabeled subdivision (h) and provides a nonexclusive list of factors to be considered by the court in determining whether to have a remote or hybrid proceeding or to permit or require participation through video or audio conference. As described above, in some instances the factors are a guide and at other times the court must find good cause based on the factors. Previously, there were separate factors for use of audio and video conference and the list has been merged into one. The existing factors are retained, and the list is supplemented with additional considerations.
Factor (1) is amended to also include consideration of whether the in-person location has adequate airflow as this might impact the suitability and safety of an in-person hearing. Factor (2) is amended to also allow the consideration of health and safety, and extends this consideration beyond just parties and witnesses to also include jurors, court personnel, and counsel, and persons who may be dependent on or reside with these persons. Factor (2) now encompasses the safety of participants, which might include whether there is a history of abuse or harassment or if there are other safety concerns relative to a party, witness, or other participant. Factor (2) also is amended to include the expected duration of the proceeding, the time and expense associated with travel, and the expected duration of a witness' testimony. Factor (4) is amended to include whether a witness or participant is institutionalized. Factors (6) and (9) are amended to apply to both video and audio conference.
Factors (3), (5), (7), and (8) are unchanged and simply relabeled from letters to numbers.
New factor (10) requires consideration of whether conditions can be imposed to ensure the fairness of the proceeding and the reliability of the evidence, and to protect public health as allowed under subdivision (i). New factor (11) directs that the court should consider whether the proceeding is a matter of public interest and whether public access can be adequately provided. Factors (12) and (13) are intended to make explicit that participation by audio conference is not a first choice and when chosen attention must be paid to the details to ensure full and fair participation by all. Factor (12) is incorporated from the former audio-only factors and requires the court to consider whether participation or testimony by video is feasible instead of by audio conference without imposing substantial cost or burden. New factor (13) applies when at least one person is participating by audio conference and requires the court to consider whether all participants can adequately hear and speak and whether the audio can be recorded for the record. Former factor (J) is retained and relabeled as (14). This is a catchall provision allowing the court to consider any other relevant circumstance. This may include, for example, whether participants have mobility issues, a disability that requires an accommodation, or the need for a translator.
New subdivision (i) addresses the conduct of the proceedings and contains some provisions from former (d)(5), which pertained to proceedings conducted by audio conference. Under new (i)(1), the court may "impose conditions to ensure the fairness of the proceeding and the reliability of the evidence, and to protect public health." For example, to ensure reliability, the court may require that specified persons or no persons be present with a remote witness or that a witness affirm under oath that the witness is receiving no verbal or nonverbal communications from any persons within or outside of the room. It is essential to the integrity of the proceedings that behavior that would be unacceptable in open court, with all participants present, does not occur during remote or hybrid proceedings. Trial judges are in the best position to impose conditions to ensure this outcome. Conditions may also be imposed to allow parties, witnesses, judges, and counsel to be able to participate without jeopardizing their own health or the health of persons who may be dependent on them. Under (i)(2), the court may also suspend, modify, or reschedule the proceeding if the court determines that the personal appearance of some or all participants is necessary. Finally, under (i)(3), the court may apportion the expenses of a video or audio conference among the parties.
New subdivision (j) provides that jury selection is governed by the provisions of the rule applicable to evidentiary proceedings.
New subdivision (k) applies the rule to stalking proceedings under 12 V.S.A. §§ 5131-5138 and sets a default requirement that these proceedings are hybrid. The rule adopts the identical language governing relief-from-abuse (RFA) proceedings under V.R.F.P. 17(e). In making this determination, the committee considered the experiences of judges, attorneys, and participants in remote and hybrid proceedings during the pandemic. On balance, the committee determined that a default of hybrid proceedings provides the best balance for stalking and RFA cases. Plaintiffs are not required to come physically to the courthouse and face an alleged abuser or stalker. On the other hand, those plaintiffs or defendants who do not have adequate access to technology or who prefer to may attend in person. These are not criminal proceedings so there are no constitutional concerns regarding confrontation and presence of the defendant. Although the rule allows the parties to file motions for participation by an alternate method, the courts must manage these motions to avoid their use for purposes of harassment, intimidation, or delay. The rule states that a request by a party need not comply with V.R.C.P. 7, governing the content of motions, but must be served pursuant to V.R.C.P. 5. This modification recognizes the need for flexibility in these proceedings.
Former subdivision (e) regarding technical standards is relabeled as (l) and is unchanged.
Reporter's Notes
Rule 43.1 is added to provide a uniform procedure and standards for video or audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in civil actions in the civil division of the superior court. In its title and throughout. Rule 43.1 uses the term "audio" conference.
Telephone participation is the longstanding and still most common form of remote audio participation in all types of Vermont proceedings where authorized. The broader term, which includes telephone, is used in the new rule to make clear that evolving technologies that provide web-based audio communication may be used if the procedural and technical requirements of the rule and any administrative order adopted under subdivision (e) are met.
A simultaneous amendment of V.R.C.P. 43(a) provides expressly that proceedings under this rule are an exception to the existing requirement that "testimony ... shall be taken orally in open court." See Reporter's Notes to that amendment. Rule 43.1 also applies so far as applicable in small claims actions by virtue of V.R.S.C.P. 6(a) and 13 and in the Environmental Division to the extent provided in V.R.E.C.P. 3, 4(a), and 5(a)(2). A simultaneous amendment to V.R.F.P. 17 makes the rule applicable in proceedings in the family division with appropriate variations. The probate division will have a similar procedure set forth in simultaneously amended V.R.P.P. 43 and newly adopted V.R.P.P. 43.1.
The rapid development of technology and the increasing availability and use of video and audio equipment in Vermont courtrooms provide both the opportunity and the necessity for a uniform rule. Existing rales and administrative orders contain incomplete and inconsistent provisions. See V.R.C.P. 43(a) (discussed above); V.R.S.C.P. 6(a) (testimony or participation by telephone in court's discretion, applicable also under V.R.C.P. 80.6(d)(4) -Judicial Bureau, 80.7(e)(3)-vehicle forfeiture, 80.9(c)-parking violations); former V.R.F.P. 17 (court may require or allow testimony or participation by telephone if conditions met); V.R.A.P. 33.1(b) (oral argument in summary proceedings by video or telephone conference); V.R.E. 611(a) (authority "to exercise reasonable control over" the manner of interrogating witnesses not exception to V.R.C.P. 43(a), per Simpson v. Rood. 2003 VT 39, 175 Vt. 546, 830 A.2d 4 (mem.)); V.R.E. 807(e) (two-way closed circuit television testimony by a child or person with psychiatric or similar disability); A.O. 38 (video and telephonic appearances by incarcerated parties and "certain witnesses" in criminal and family cases, currently used in Chittenden County arraignment pilot project funded by Legislature).
Experience in other states shows that once the technology is installed in courtrooms for one purpose such as arraignment, it rapidly becomes used for other purposes, including a variety of civil proceedings. See, e.g., Mich. Ct. R. 2.407(a); Minn. R. 131.02.
Accordingly, it is important to be prepared with uniform rules defining the purposes for which video and audio conferences can be used in the Vermont courts and the standards governing that use. Although the rules of other states and experience under V.R.F.P. 17 were a starting point, the present rule is more generally based on Vermont circumstances and experience under the various Vermont provisions cited in the preceding paragraph.
Rule 43.1(a) gives the rule a broad scope. The court has discretion to permit or require testimony or participation in "any trial or other proceeding" to which the rule is applicable by all "necessary participants," using video or audio conferencing from one or more remote locations, subject only to specific requirements and conditions detailed in the rule. The intent is to favor the use of video or audio when it will advance disposition of a proceeding as long as technical standards are satisfied and there is no countervailing circumstance in the particular situation.
Rule 43.1(b) defines, also in broad terms, "audio conference" (including telephone), "remote location," and "video conference," - the basic terms that the rule employs. The definitions do not specify the exact technology required but emphasize the capacity for contemporaneous communication and that the technology employed must meet the standards provided in any administrative order adopted under subdivision (e).
Rule 43.1(c) sets forth the terms on which video conferencing may be employed in a trial as well as in any other proceeding. Under paragraph (1), the parties may agree in writing, with court approval, on video participation or testimony. Approval will only be withheld for good cause and may be granted on a blanket basis by a sitting judge for certain specific situations in which there is no basis for withholding approval. Paragraph (2) provides for use of video on motion of a party on specific grounds such as cost savings, limited scope of the testimony, or availability and importance of a witness. The court, pursuant to paragraph (3), may order participation or testimony by video on its own motion. In issuing such an order, the court should be mindful of the basic purposes of the rule emphasized by subdivision (a) and the criteria of paragraph (c)(6) and should apply those criteria in ruling on an objection to the order.
Rule 43.1(c)(4) permits a judge to preside by video from a location other than the courtroom where the proceeding is scheduled, regardless of whether others are participating or testifying in the courtroom or remotely. Again, the criteria of
paragraph (c)(6) are the basis for ruling on a party's request showing cause why the judge should preside personally. Paragraph (c)(5) permits the court to waive the time requirements of paragraphs (l)-(4) for filing and objecting if there are unanticipated reasons making timely notice impossible.
Rule 43.1(c)(6)(A)-(J) set forth 10 factors to be considered by the court in issuing orders or ruling on requests or motions under paragraphs (l)-(4) or acting under paragraph (5). The factors cover a range of considerations designed to allow the court to fine-tune a decision in specific circumstances. Sufficiency of the technology is fundamental (Factor A). Factors (B), (C), and (D) call for a balance of the convenience of and cost to the parties and witnesses of physical participation against the importance of physical presence to a determination of the issues. Factors (E), (F), (G), (H), and (I) address the effect of video appearance on the conduct of the proceeding-the possibility of prejudice, the effectiveness of cross-examination, the effect of video appearance on the dignity or integrity of the proceeding, the importance and complexity of the proceeding or testimony, the adequacy of opportunities for confidential lawyer-client communication, and assurance of the identity of a witness and administration of the oath. Factor (J) is a catchall permitting consideration of any other relevant factor. For example, if the judge believes that coaching of the witness or other improper activity is occurring at a remote location, the judge could take appropriate action under this provision.
Rule 43.1(d) provides procedures and standards for audio conferencing (defined in Rule 43.1(b) ) in both nonevidentiary and evidentiary proceedings. It replaces the procedure for telephone participation in the family division previously provided by V.R.F.P. 17.
Rule 43.1(d)(1) makes clear that the judge has discretion to participate remotely by audio conference in any proceeding. In exercising that discretion, the judge should be guided by relevant factors provided in subparagraph (d)(3)(B) and paragraph (d)(4) and retains the authority provided by paragraph (d)(5) to terminate or suspend the proceedings and to apportion their costs.
Rule 43.1(d)(2)(A) provides that in nonevidentiary proceedings, the parties may agree on audio participation by one or more participants from appropriate remote locations, subject to the authority of the court under paragraph (d)(5). Under subparagraph (d)(2)(B), in the absence of agreement, on the motion of a party or on its own initiative, the court may permit audio participation
unless, after considering the factors in subparagraph (d)(3)(B) and paragraph (d)(4), it finds good cause to require participation in person.
For evidentiary proceedings, under Rule 43.1(d)(3)(A), if the parties agree, the court may permit audio participation or testimony, again subject to paragraph (d)(5), unless it finds good cause to require personal participation on the basis of the factors in subparagraph (d)(3)(B) and paragraph (d)(4).
Under subparagraph (d)(3)(B), if there is no agreement on audio participation or testimony, the burden is reversed. The court may permit or require audio only if it makes affirmative findings on factors (3)(B)(i)-(v), which address both the need for and appropriateness of remote audio participation. The issues are preliminary questions under Vermont Rule of Evidence 104(a), so that in making these findings, the court is not bound by the rules of evidence, with the exception of the rules of privilege. The court is also to consider the factors set forth in paragraph (4) and may exercise the authority provided in paragraph (5).
Rule 43.1(e) provides that the technical requirements that must be satisfied for video or telephone conferencing to proceed will be established by Administrative Order of the Supreme Court.