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Before Statler and Waldorf get too vociferous, this is a blog about workers' compensation, but it is also about the law and those who practice it. Too much of workers' compensation is wrapped up in the idea of litigation, but in the eyes of those who adopted it as a "self-executing" system, perhaps "any" is "too much?" The Supreme Judicial Court of Massachusetts rendered a May 9, 2022 decision in Adoption of Patty (a pseudonym), 186 N.E.3d 184 (MA 2022). Adoption is a far cry from workers' compensation and Massachusetts a far cry from Florida, but the case bears some consideration, despite Statler and Waldorf.
The challenge there regarded the engagement of Zoom for court proceedings. Essentially, there were allegations that the platform was not adequate and that the due process rights of the parties were compromised by its use. Note that the Florida Office of Judges of Compensation Claims (OJCC) has been using Zoom for trials and hearings since the "Grand Pivot" in March 2020, and that state mediation for the OJCC will soon use Zoom as the default process in days to come. See It's Coming Around Again (May 2022).
The Massachusetts Court noted that the matter proceeded to video proceedings "under a state of emergency declared by the Governor in response to . . . COVID-19." Everyone is familiar with the parade of responses, retreats, and uncertainty that the early days of the Great Pandemic (or Panic) brought. See A Great Hamburger with a Smile (April 2021). In this particular instance, there was a litany of technological challenges that precluded the pro-se mother (a party) from participation "either by video or by telephone." There were interruptions in the testimony of witnesses, and even an admission by the trial judge that "plowing ahead in the mother's absence may be creating an 'appealable issue.'” Hint, seldom is "plowing ahead" a good move when the rights of parties is concerned; once a judge starts to see "appealable issues" that might be ameliorated or eliminated by a brief pause, perhaps a brief pause.
The trial was reconvened within days to allow the mother to conduct cross-examination and to otherwise remedy the impacts of the technology challenges. By then however, the Court noted, "the damage was done." The trial judge terminated the mother's parental rights, denied a request for a new trial, and the matter proceeded to appellate review. The appellate court concluded that "the trial violated the mother's right to due process under the Fourteenth Amendment to the United States Constitution and" Massachusetts law.
The judge in this instance was precluded from live hearings, and thus essentially forced to video. It is notable that though the OJCC adopted Zoom early, the discretion to conduct live or remote hearings remained intact for JCCs throughout the pandemic. The OJCC respected the independence of our judges. That was perhaps easier for this and other administrative agencies, with control over premises and process, than for courts that are intertwined with courthouses owned potentially by various government entities.
Errors that occurred with the technology in this Massachusetts case included:
The mother was not "provided with instructions on how to join the proceedings."The trial judge was apprised "the mother wanted to participate, but did 'not have video capacity.'”The trial judge's compromise was to allow the mother to connect to the Zoom by telephone only. However, she could then "hear but not to see the proceedings."
After the direct exam of the first witness, "the clerk realized that the mother had been disconnected from the virtual hearing room," and when she attempted to rejoin had been relegated to a waiting room.There was confusion as to whether the mother was connected. The Court noted that "Nothing in the record suggests that the mother understood either that she was being moved to the waiting room or how to ask to be readmitted."Though the judge provided explanation and instructions to the mother, she did not respond on Zoom. Eventually, "the judge had the clerk disconnect the mother from the hearing altogether," though it was "not clear that the mother could hear the judge's statements."
Despite the challenges, the trial "judge concluded, 'I don't think we have any choice but to continue.'" And, the judge questioned whether the issues was with technology or with some purposeful behavior of the mother (such a question is pertinent, but so is an opportunity for the mother to explain so that the judge can decide if there was purposeful behavior).
When informed of the mother's challenges, and after she "she moved to conduct the trial in person," "no inquiry was conducted regarding her access to technology that might allow her to participate in the Zoom hearing via video, so as to be on equal footing with the other participants." That accommodation is impossible may be one thing, but that accommodation is never discussed or considered is quite another.
As the trial judge proceeded without the mother present, the record supported that there were ongoing technical challenges for other witnesses. When the proceedings resumed, the mother was present by Zoom but expressed frustration, swore, and eventually hung up (in the best of settings, pro se litigants can feel challenged and frustrated).
Following the conclusion of the trial, the "judge issued his decision," and "nine months later, he issued extensive findings of fact and conclusions of law in support of the decision." Note that time period. The judge made a decision and then explained it in detail only after a nine-month delay. Justice cannot function in a system in which a human child could be conceived on the day of trial and delivered live after normal gestation before the trial decision is detailed for the parties. This is a red flag.
While awaiting that order for nine months, the mother sought a new trial, and supported the request with an affidavit explaining her technology issues. The denial of that request and the trial judge's decision were appealed, and the Court opinion goes to great length to explain due process (how much is due, and when, how, etc.). The crux of this centers on distinctions between criminal, civil, and other proceedings and the application of due process.
The Court reiterated a prior holding that concluded that "the risk of erroneous deprivation of these interests because a hearing is conducted via an Internet-based video conferencing platform like Zoom can be 'minimal.'” It is thus absolutely potentially appropriate. However, it is incumbent on the trial judge to "carefully monitor() the technology to ensure it is functioning as intended." Additionally, "the judge must ensure, preferably in advance of the hearing, that the participants understand the procedures to be used when the technology does not work as intended."
The Court concluded that "it is 'crucial' to suspend trial when technological difficulties arise." Thus, there is much for the trial judge to consider in attempting to shepherd a case through trial. The Court was not unsympathetic to the technology issues with which the trial judge was confronted (unexpectedly and immediately in the beginning of the Great Panic). However, it concluded that it was improper to proceed when there were such technology issues and unanswered questions as to cause.
This is not a workers' compensation case, nor a Florida case. The points made by the Court are nonetheless instructive. The purpose of a hearing is to afford those with an interest to present their story. The potential persists for technology to aid us, facilitate us, yet challenge us, and to periodically fail. The judge's job is to find a methodology in which an effective and appropriate proceeding may nonetheless occur. Though in the midst of a pandemic the challenges may be multiplied, the provision of due process must remain at the fore, and all parties must be afforded an effective opportunity to be heard and to participate in trials.
To Zoom or not to Zoom, that is the question. The answer should come from the judge, after affording the parties their chance to advocate for their preferred procedure (live, Zoom, etc.). And, the answer should be based on consideration and facts.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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