Vol. 58 — Video Conference Rule

A legal note from Marshal Willick about the failure of court administrators to carry into effect the Nevada Supreme Court’s video and audio appearance rules (and an explanation for my lengthy hiatus).

Lawyers live in a world of rules.  But there are good ones and bad ones, and some that just are not applied in a way that actually carries their intent into effect.  This note is about one of those – how court administration indifference cost one of my clients $7,000.

This is the first in an occasional series of notes concerning court rules – the good, the bad, and the ugly, and how they affect people in the real world.  And sending it sets me up like a shooting gallery duck, because I’m neck deep in writing a set of them myself (the EDCR 5 re-write, which will be addressed in detail at a later date).

I.    BACKGROUND:  APPEARANCES BY AUDIOVISUAL EQUIPMENT

Back in 2009, the Nevada Supreme Court passed Part 9 of the Supreme Court Rules “governing appearance by audiovisual transmission equipment.”  The rules went into effect in February, 2010.  There were many reasons for the rules, including making it easier for people throughout Nevada to more affordably hire counsel of their choice, even if that lawyer lived in a different city.

The rules include a policy statement that their purpose was to “improve access to the courts and reduce litigation costs.”  To do this, courts were directed to “permit parties, to the extent feasible, to appear by audiovisual transmission equipment at appropriate conferences, hearing[s], and proceedings in civil cases.”

The rules set out the various kinds of hearings in which AV appearances are presumptively to be allowed – short non-testimonial hearings for the most part – and those at which personal appearances are still to be presumptively required – trials, restraining order hearings, settlement and trial management conferences, and a few others.  Judges have the ability to override the presumptions in either direction – granting video appearances where they are not presumed, or deciding that personal appearances are required despite the presumption.

The rules are “Part IX of the Supreme Court Rules.”  They were most recently updated effective January 1, 2013, with provisions applicable to criminal as well as civil proceedings.

As part of its push for audiovisual appearances, the Court made arrangements to provide identical and very capable AV equipment in courthouses throughout the State.  According to court staff, the judges routinely use that equipment for administrative and committee work among themselves.

II.    “YOU CAN’T GET THERE FROM HERE”; PRACTICALITIES OF RURAL TRIALS

We have a divorce case that was filed in Elko – some 430 miles away, and about as far from Las Vegas as one can get and stay in the State.  When we did not finish a trial in April, the matter was continued to late June.

Getting to Elko from Vegas requires logistical arrangements that would make Rube Goldberg smile.  (See http://en.wikipedia.org/wiki/Rube_Goldberg_machine.)  Direct air travel is an artifact of the past.

At present, to fly to Elko, one must leave Las Vegas, stop in Salt Lake City, and get a connection by puddle-jumper to Elko.  Travel by way of those planes was famously and accurately described by comedian Ron White:

I flew here on a plane this big; it was like a pack of gum with eight people in it.  We were putzing along . . . going half the speed of smell!  We got passed by a kite!  There was a goose behind us, and the pilot was yelling “Go around!”

With check-in, transfers, security, etc., it is as a practical matter impossible to get from Vegas to Elko in less than 4 to 5 hours – and if it is a morning hearing, that travel must be done the day before the hearing, requiring an overnight stay on the way in.  As the last flight out of Elko before the airport closes is at about 5:10 p.m., if the hearing is all day, a second night’s stay is also required.  The alternative is to drive – requiring some 7 hours driving time in each direction.

If anything goes wrong at any stage, it gets far worse.  Travel by road intermittently takes an hour or two longer if there is extra traffic or an accident, and any problem with the airlines makes the process much more difficult.

Going back after the April trial date, for example, a plane delay in Salt Lake meant that the only way home was by way of the circumlocutious route: Elko – Salt Lake – Los Angeles – Las Vegas; that took over 8 hours, and got our trial team home (from a 5:00 close of trial) after midnight.

On the way to Elko for the June hearing, I was told by the gate agent in Salt Lake City that the plane for the connection to Elko was “broken” – they had just towed it to the repair hangar to try to figure out why.  I mentioned that, as much as I wanted to get to Elko in time for the trial, I supposed it was better that the plane broke on the ground rather than in the air.  A voice to my left said “I agree!”  He identified himself as the pilot.

III.  PRACTICAL UNAVAILABILITY FOR THE PEONAGE

Given these logistical headaches, conducting an Elko hearing for Vegas counsel by way of AV equipment would seem a no-brainer, especially where the only non-Elko-resident witness had already been granted permission to testify by phone.  Politics and bureaucracy, however, made it impossible to accomplish that logical accommodation.

We attempted for over a month to get verification that the equipment in Las Vegas could be made to talk to the identical equipment in Elko.  The folks in charge of the equipment just could not take the time or make the effort to test and actually advise us of operational compatibility, or ensure that it would be made available for actual use by mere lawyers and clients at the necessary time.  After some 10 attempts – both directly and through paralegal staff, over a period of weeks – we gave up.  With the time for the next hearing coming up rapidly, we had little choice but to repeat the two-day road show to make a personal appearance at the follow up hearing.

The court system is kept operational by a host of people not immediately observable by the participants in court proceedings, just as Disney World depends on the inhabitants of the hidden tunnel system beneath to keep the place clean and humming.  Among these Morlocks of the judiciary are a host of administrative personnel, who provide the infrastructure necessary for operations.

They have to please the guy at the top of the local court – or at least keep him mollified – but they report to the clerk’s office bureaucracy.  So they do a great job of making the equipment available for judicial conferences and meetings – because not doing so could cause them grief, directly or indirectly.  The problem is, there is no percentage in it for them to make it any easier for the public or the attorneys to actually use the equipment in the day to day representation of actual clients in actual cases.  Those people don’t hire, don’t fire, and don’t do performance reviews, which makes them pretty unimportant in the bureaucratic universe.

IV.  THE NECESSITY OF A TOP-DOWN MANDATE

The situation is not going to change unless the Nevada Supreme Court indicates that it really means for all of the shiny new equipment to actually be made available in some practical way to the great unwashed outside the judicial edifice.

This is not rocket science, and requires little more effort than an expression of will – and perhaps appointment of a coordinator with authority from the Court to visit each courthouse in the State and set up a simple-to-access program for equipment access and make clear that the Court expects it to be facilitated.  Such a coordinator should be vested with an imprimatur of judicial authority, so that those that can accomplish the result have an incentive to see that real people actually get the benefit of the rules and equipment.

With modest effort, a process for litigants to request and actually get audio-visual equipment use from one court to another could be set up in 90 days.  But without that expression of will, making the equipment actually available should be expected to remain “somebody else’s problem” to the people that could actually make it work.

V.  EXPLANATION FOR THE RECENT LENGTHY DELAY BETWEEN LEGAL NOTES

Inquiries have come in as to why there have been so few legal notes of late.  In short, the explanation is the time and effort required to bridge the gap between the conceptualizing of a thing, and the doing of it.

In the past year, this firm has rolled out two net-based MLAW computer programs (version 4 of the Interest and Penalties Calculator, and Version 1 of the Case Summaries Program).  At the same time, we have drafted, produced, conducted, and recorded a 5-part, 15-hour CLE series on Family Law Basics in conjunction with the Legal Aid Center of Southern Nevada, fulfilling the promise to provide meaningful, low-cost CLE made in legal note Vol. 54, “Putting Your Money Where Your Mouth Is,” Oct. 29, 2012, posted at https://www.willicklawgroup.com/newsletters.

At the same time, we have largely completed work on a layman’s guide to Nevada family law, which should be published (and announced) in the first quarter of 2014.  Finally, I got around to actually completing the long-promised Alimony Manifesto: How Alimony Should Be Calculated, and Why – to be delivered at this year’s annual Advanced Family Law Seminar (December 5, 2013, at the Las Vegas City Hall Council Chambers – details at http://www.nvbarcle.org/course-sales-page/advanced-family-law-live) and the LEI National CLE in Colorado in January).

It’s all been pretty time-consuming, slowing distribution of these notes a bit; but there is a lot more to say, and do, in this forum.  So please do continue sending in ideas, comments, observations, and complaints for these notes as to the court system, Nevada Bar, and Family Law in particular – I will do what I can to make the commentaries as timely as possible.

VI.  QUOTES OF THE ISSUE

“What we think, or what we know, or what we believe is, in the end, of little consequence.  The only consequence is what we do.”
– John Ruskin

“Bureaucracies are inherently antidemocratic.  Bureaucrats derive their power from their position in the structure, not from their relations with the people they are supposed to serve.  The people are not masters of the bureaucracy, but its clients.”
– Alan Keyes
[For the eagle-eyed, yes this is a repeat; but it seemed too perfectly appropriate not to include here.]

“Victory achieves the highest goal attainable with available means.”
– Von Moltke

“In our time . . . a man whose enemies are faceless bureaucrats almost never wins.  It is our equivalent to the anger of the gods in ancient times.  But those gods you must understand were far more imaginative than our tiny bureaucrats.  They spoke from mountaintops not from tiny airless offices.  They rode clouds.  They were possessed of passion.  They had voices and names.  Six thousand years of civilization have brought us to this.”
– Chaim Potok, Davita’s Harp

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