by: Peter J. Gallagher (LinkedIn)
In Pathri v. Kakarlamath, the issue before the court was whether a witness could testify via contemporaneous video transmission in a divorce trial. The trial court denied the witness’s request to do so and the issue went up on appeal, where the Appellate Division began its decision, naturally, by referencing Gilbert & Sullivan’s “The Major General’s Song” from The Pirates of Penzance:
In most respects, the bench and the bar might – with apologies to Gilbert and Sullivan – proclaim the court rules to be “the very model of a modern” set of civil guidelines. But, in one respect, the rules haven’t quite caught up to the technological revolution. So, feeling “plucky and adventury,” we granted leave to appeal to consider how a judge should assess a party’s request to appear at trial and present testimony by way of contemporaneous video transmission.
Pathri was a matrimonial action. Plaintiff and defendant, both of whom were originally from India, came to the United States in 2007. Plaintiff sued defendant in 2018 and moved back to India shortly thereafter. Defendant countersued for divorce. One week before the scheduled trial, plaintiff requested that he be allowed to appear and testify at trial via “contemporaneous video transmission” from India. He claimed he could not obtain a visa to enter the United States. Plaintiff opposed the request and the trial judge denied it, because it would “inhibit her ability to assess plaintiff’s testimony and credibility.” Plaintiff appealed.
The Appellate Division stayed the divorce trial and heard the appeal on an emergent basis. It vacated the trial court’s decision and remanded the matter back to the trial court with instructions on how to address the issue.
The Appellate Division recognized that the issue in Pathri was one of first impression. The New Jersey court rules “do not provide for testimony by way of contemporaneous video transmission, but they don’t prevent it either.” And while New Jersey courts often receive testimony through means other than live witnesses – e.g., videotaped testimony from experts, video appearances in municipal courts, and telephonic testimony to determine whether an individual is incapacitated – the question of whether contemporaneous video testimony was permissible in a civil trial had never been resolved.
The precedent the trial court relied on to deny plaintiff’s request in Pathri, Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., was 30 years old and involved testimony provided by telephone. The fact that Aqua Marine was written “decades before Skype, FaceTime, and the like were even dreamt of” gave the Appellate Division pause about relying upon it. Nonetheless, the Appellate Division accepted the two-part test adopted in that case, which permitted telephonic testimony only in exigent circumstances and only where the “the witness’ identity and credentials [were] known quantities.” In arriving at this decision, the Appellate Division also found helpful Federal Rule of Civil Procedure 43(a), which permits trial testimony via contemporaneous video transmission “for good cause in compelling circumstances and with appropriate safeguards.”
Having accepted the two-part framework from Aqua Marine, the Appellate Division then identified seven factors the trial court should consider when determining whether to allow plaintiff to appear by video:
the witness’ importance to the proceeding;
the severity of the factual dispute to which the witness will testify;
whether the factfinder is a judge or a jury;
the cost of requiring the witness’ physical appearance in court versus the cost of transmitting the witness’ testimony in some other form;
the delay caused by insisting on the witness’ physical appearance in court versus the speed and convenience of allowing the transmission in some other manner;
whether the witness’ inability to be present in court at the time of trial was foreseeable or preventable; and
the witness’ difficulty in appearing in person
The Appellate Division described each of these factors in greater detail, but stressed that, ultimately, “courts asked to make such rulings must remain mindful of Rule 1:1-2, which declares that the court rules are to be ‘construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.’” The seven factors the court proposed were designed to allow a court to determine whether the principles of Rule 1:1-2, “which undergird the application of all court rules,” were best served by allowing (or disallowing) contemporaneous video testimony. And the Appellate Division seemed to suggest that these principles favor allowing such testimony where the alternative is that the witness would not be able to testify at all:
Indeed, in most cases, it would be hard to imagine that the fair application of these principles would lead to a trial that lacks a party’s testimony rather than contains that testimony in a less than desirable form. If a party is not permitted to testify by way of contemporaneous video transmission, and is unable to attend in person notwithstanding, the ruling could have the undesirable effect of turning the trial into a proof hearing in favor of the one party able to attend. Judges, in the final analysis, should be wary of the impact such a ruling would have on the overall presentation of the proof.
Whether this will be the case in Parthi is now up to the trial court, as the Appellate Division “simply require[d] a ‘do over’” to allow the parties and the trial court to develop the record by addressing the seven factors the Appellate Division proposed.
(As an aside, the Parthi decision addresses an issue that is also discussed in Malcolm Gladwell’s new book, Talking to Strangers. The book is an interesting read, particularly for lawyers. In Parthi, the Appellate Division addressed the importance of a factfinder being able to observe a witness, noting that this is crucial to being able to judge the witness’s credibility. In Gladwell’s book, he suggests that this assumption is faulty and that we may actually make better decisions about an individual’s credibility when we never actually meet the individual.)