{Read in 7 Minutes} As a Trusts and Estates attorney practicing in New York, I routinely appear in the Surrogate’s Court and since the COVID 19 pandemic, most Courts have been largely operating remotely with staff and practitioners interacting via email and video conference.
In late May 2021, the staff of the various counties’ Surrogate’s Courts returned to the building to work in person, but access for attorneys and parties is still restricted. Courts continue to do many appearances remotely and may continue to do so for the foreseeable future. Frankly, any estimates of when things would return to “normal” would be, at best, a guess. It is always best to check the website of each individual Surrogate’s Court to see if they are open to the public and, if so, for what purposes.
So, if you need to appear virtually in the Surrogate’s Court, what should you do to prepare? Here are some general suggestions you may find helpful:
1. Do I need to participate?
Most parties get involved with the Surrogate’s Court when they receive a Citation, a Motion, or an Order to Show Cause that sets forth a time and place for them to appear before the Court remotely. That party may proceed without an attorney if they choose to do so.
Most people, however, choose to retain counsel. If they do, it is the attorney that the Surrogate’s Court expects to see at the virtual hearing. You should ask your attorney whether or not the court expects your participation as the party. It’s possible that the attorney may cover the appearance for you and then report back afterwards. If this is the case, you may still wish to observe — in which case, you should have your attorney contact the Clerk of the Courts to make sure that you receive the email invitation to the virtual hearing (presently conducted via Microsoft Teams).
2. Test your software before the hearing.
Technology is great when it works — when it doesn’t, it is an epic disaster, akin to five planes crashing into each other in mid-air, bursting into flames, and having the debris fall on a puppy farm. Nobody likes burned puppies, so prepare for your hearing.
This means you should have some minimal familiarity with how to use Microsoft Teams. Download the program before the day of the Court appearance, make a test call with somebody in your family or one of your friends. Make sure that your webcam and microphone are working and that you know how to mute the camera and microphone. Keep practicing until you are completely comfortable with the program.
3. Remember a virtual hearing is still a Court appearance.
This means you should treat the appearance with the same respect and decorum as if you were appearing in the Courthouse. Make sure that you are dressed appropriately for Court and present yourself in a manner that you would want the judge to see you. If you are trying to be clever by dressing for Court from the waist up — i.e. where you’ll be seen in a suit on camera while wearing shorts and slippers (which I don’t necessarily recommend) — be sure to mute your camera before standing up, if you need to take a break for the restroom or to answer the doorbell.
Do not do things on camera that you would not do if you were in the courtroom, such as eating, drinking, smoking (or worse), reading a newspaper, or playing on your phone on camera. If you recently used any lenses or filters on your cameras, be sure to turn them off to avoid appearing as an animal or a cartoon character (or worse) during the Court proceeding.
Be sure to look at your surroundings and try to find a private space to participate in the hearing. Having various people walk behind you or interrupt you during the hearing is going to be disrespectful to the Courts and distracting to everyone else. It’s best if you are the only one on camera, and you are not interrupted during the time of the hearing. If you have any questions about how much time to set aside, ask in advance.
4. Prepare.
If you are doing more than observing, for example, if you are testifying as a witness, treat the testimony with the same solemnity that you would if you were testifying in person. If you were testifying at the Courthouse you probably would not have access to your handwritten notes. So when you testify virtually make sure that you are not relying on notes either on paper, in your hands, or on your computer screen. If the Court suspects that you are referring to notes, the Court or one of the attorneys may ask you directly. If you are using notes, the Court will likely require that you circulate them to the Court and the attorneys so they can see what information you’re relying on when providing your testimony. Unless your testimony is incredibly detailed, it is probably best to testify from your memory, having looked over the notes before the hearing started. If you feel that you need notes for your testimony, consider asking your attorney about it. The attorney can probably mark them as an exhibit so that you avoid the issue during the hearing.
As you can see, there is a little bit more work that goes into a virtual appearance. However, with a little preparation and respect for the process, a virtual appearance can be as satisfying and rewarding as any in-person court proceeding.
For more information on this topic, please contact me.