Divorce Cases Proceed In-Person or Virtually: There Are Pluses and Minuses to Both

empty court room

In an October decision in Kings County Supreme Court, Judge Jeffrey S. Sunshine indicated that cases can and should proceed, even for criminal contempt, in person and/or virtually. A litigant may not delay a trial simply because he/she does not believe that in person trials are unsafe. To the contrary, there are now other mechanisms available to try cases including virtual trials.

As a matrimonial/family law attorney, I have been conducting virtual trials and in person trials during the pandemic. In my view, there are pluses and minuses to both.

Virtual trials sometimes encounter technical difficulties and can feel disconnected. And on Skype, it is next to impossible to detect body language and one never really knows who is in the room coaching the witness. Do they have access to “helpers” and the ability to text and email others? Is the Skype witness looking at notes?

When the trial is in-person, all parties and witnesses face potential exposure to COVID-19. Parties and witnesses may additionally be traveling using public transportation. Witnesses are understandably reluctant to appear. Lawyers are placing themselves and their families at risk. The Court also faces risk to exposure to COVID-19 including Judges, court officers and the court reporters. Ironically, with litigants and witnesses wearing masks and shields, it may be even more difficult to assess credibility than on Skype.

With the parties and witnesses cloaked with masks, shields and even eyewear protection, it must be difficult if not impossible for a Judge to see the facial expressions of both the witnesses and the litigants. It may also be more difficult to assess body language as people are sitting further apart and often in various socially distanced parts of the courtroom. The Court’s ability to judge credibility at trial is a critical issue, and these challenges may affect the ultimate decision.

Plainly and in accordance with Judge Sunshine’s decision, there is no perfect trial. We can only do the best that we can do for our clients in these already uncertain times and move our cases and our clients forward to their next chapters.

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