To Zoom or not to Zoom? Minnesota Trial Lawyers Beware

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By: Janel Dressen

Effective June 6, 2022, the Minnesota Supreme Court enacted an April 19, 2022, Order Governing the Continuing Operations of the Minnesota Judicial Branch, which implemented remote hearing protocols indefinitely (hereinafter the “Remote Court Order”).  https://www.mncourts.gov/About-The-Courts/NewsAndAnnouncements/ItemDetail.aspx?id=2104. In effect, the Minnesota Supreme Court proclaimed that remote court in Minnesota state court is here to stay.

This announcement is the most significant change in the practice of law for trial lawyers in the last few decades, perhaps longer and is even more significant than the establishment of the Minnesota Court of Appeals in 1983. Truth be told, as a trial lawyer and the CEO of a law firm made up of trial lawyers who spend a significant amount of their practice in Minnesota state courts, I have many questions about this indefinite change.  How will this impact my client’s need to have “their day in court?”  With minimal business trials (many complex business disputes settle before trial), how will new lawyers gain experience in the courtroom? Is it possible that new lawyers practicing in Minnesota state courts may go years without seeing the inside of a courtroom? As a law firm, how do we train new and experienced lawyers for remote court? How do we set client expectations? Will the continuation of less formal, distant remote hearings impact case resolution? Do we need to put together our largely remote case differently than we would if we were in person for all hearings and court appearances?

While answers to these questions and many others remain (which is, in and of itself, a litigator’s oyster), what is clear is the immediate need to: (1) be aware of and knowledgeable about the Remote Court Order; (2) consider the implications of the Remote Court Order on all pending and to be commenced cases in order to provide competent and diligent representation to clients as required by the Minnesota Rules of Professional Conduct; (3) be intentional about the training provided to lawyers, who will need to learn how to practice in remote court and in-person court. The differences in presentation and strategy come into play; and (4) make sure clients understand that their only in-person “day in court” may be if the case goes to trial.  The days of being present in a Minnesota court room on a summary judgment hearing, pretrial hearing or on motions in limine, for example, may be over unless the “exceptional circumstances” standard set forth by the Remote Court Order is satisfied.

During the Minnesota State Bar Association annual convention on June 22, Minnesota Supreme Court Chief Justice Lorie S. Gildea delivered the annual State of the Judiciary address focusing many of her remarks on the Remote Court Order. See https://www.mncourts.gov/About-The-Courts/ NewsAndAnnouncements/ItemDetail.aspx?id=2127 (hereinafter “Chief Justice Gildea’s Judiciary Address”).

Justice Gildea noted that “approximately 80 to 90 percent of all district court hearings in Minnesota have been held online during the pandemic.  While the number of in-person hearings has begun to increase in recent months, remote hearings remain the predominate way hearings are held in Minnesota district courts.”  Id. She continued by highlighting that feedback about remote hearings from judges, court staff, attorneys, and litigants was “overwhelmingly positive,” with remote hearings having many benefits. Id. Justice Gildea reported that “judges, court staff, attorneys, and litigants have told us throughout the pandemic that remote hearings should have a permanent role in the ongoing operations of our courts, even as the pandemic subsides.” Id.

Following that feedback, the Remote Court Order was born. Interestingly, Justice Gildea noted that many other states are “returning to their pre-pandemic status quo and bringing most or all of their hearings back into the courthouse.”  Id. Minnesota is not following the same course.

There are two documents that all Minnesota state court lawyers, civil and criminal alike, should be familiar with: (1) the Court’s April 19, 2022 Order; and (2) the one CourtMN Hearings Initiative Policy (the “Policy”), both of which are available on the judicial branch website at https://www.mncourts.gov/About-The-Courts/NewsAndAnnouncements/ItemDetail.aspx?id=2104.

Under the Policy and Remote Court Order, “[t]he general rule of thumb is that most evidentiary hearings—that is, hearings where evidence is being presented or testimony is taken on issues in dispute—are held in person, while most non-evidentiary hearings are held remotely.”  See Chief Justice Gildea’s Judiciary Address. Statistically, under the Policy, 71% of the court’s hearings are presumptively remote and of the proceedings that are presumptively in person, I suspect such proceedings occur less than 5% of the time in the history of a case; for e.g., trials and evidentiary harassment hearings. Despite the presumptions, judges have the authority to grant exemptions to the Policy under “exceptional circumstances.”  The Remote Court Order defines what constitutes an exceptional circumstance.

Since the onset of the COVID-19 pandemic, I have appeared in many remote hearings in Minnesota and elsewhere, participated in a mock remote jury trial with Hennepin and Ramsey County judges and jurors, and served as counsel for a company in a complex business dispute over 16-days in a zoom trial.  Based upon this experience, I offer the following non-exhaustive list of considerations when contemplating whether you prefer to be in person or remote, and whether you may want to apply for an “exceptional circumstances” exemption from the Remote Court Order presumptions:

• Efficiency and convenience: cost and time savings
• Accessibility for all involved
• Complexity of the matter
• Use of documents/exhibits and other demonstrative information
• Court availability- the court may be more available and available sooner for remote hearings versus in-person hearings
• Client and witness comfort level and performance anxiety
• Lawyer, legal team, judge, and court staff comfort
• Safety concerns
• Client control- easier to control client remotely?
• Facial reactions and body language- more or less noticeable remotely versus in person?
• More or less private- is the public or media more or less likely to login to a remote hearing or attend in person? Does it matter to your case?
• There would likely be less disruption and delay with remote proceedings if there is COVID outbreak
• Is there a need for personal interaction?
• Does opposing counsel’s personality, presentation style and/or skills impact your decision?
• Does the client want to “see” the judge in person?
• Always “on” (in person) versus potentially not always “on” (remote); this consideration applies equally to lawyers and clients
• Are there presentation biases of the decision maker that can work for or against you or your client?
• Challenges of court staff and reporters
• Multi-tasking mentality when appearing remotely and not easily distracted?
• Zoom fatigue
• Generational differences and expectations

BIO: Janel Dressen is a trial lawyer and CEO of the Minneapolis law firm Anthony Ostlund Louwagie Dressen & Boylan P.A. She represents businesses and high net worth individuals in all aspects of business litigation and dispute resolution, with an emphasis on closely-held and private business disputes. Ms. Dressen has been honored as Attorney of the Year by Minnesota Lawyer, Attorney of the Month by Attorney at Law, a Notable Woman in Law by Twin Cities Business Magazine, Power 30 in Business Litigation by Minnesota Lawyer, Best Lawyer in America, and a Super Lawyer since 2016, including one of the Top 50 Woman Super Lawyers by Minnesota’s Super Lawyers since 2019.