Real Appeals of Virtual Civil Trials

BY EMILY MISKEL

After the earliest stages of the pandemic passed, civil litigation seemed to adapt to Zoom hearings and bench trials. Appellate opinions now frequently note that trials occurred by Zoom, but the issues on appeal generally do not relate to problems with the virtual nature of the trial. This article highlights some recent appellate opinions relating to issues arising in virtual trials.

Procedural Due Process Concerns

Must Be Raised in the Trial Court

The appellant claimed that her procedural due process rights were violated when she was required to attend a bench trial remotely by Zoom instead of in person. The appellate court held that the complaint was not preserved in the trial court, and cannot be raised for the first time on appeal. In re A.B ., No. 06-21-00114-CV (Tex. App.— Texarkana Apr. 8, 2022) (mem. op.).

Party Accidentally Excluded from Zoom During Trial . A parental rights termination trial took place in a 4-day bench trial over Zoom. The mother moved for a mistrial at the beginning of day 3, because she had been inad - vertently placed in a waiting room and excluded from day 2. The court implemented remedial measures: providing her the reporter’s record and allowing her an opportunity to recall the two witnesses who testified. The appellate court examined the mother’s participation in the rest of the trial and concluded that nothing indicated the trial court’s remedial measures had not cured the error. In re D.R.P ., No. 04-21-00112-CV (Tex. App—San Antonio Oct. 6, 2021) (mem. op.).

Evidence Viewed on Zoom but Not Admitted Can Still be Evidence

At a Zoom temporary injunction hearing, the plaintiff did not put on live testimony. He submitted exhibits and audio recordings in advance, stated they should be considered part of the record, but did not formally admit or play them during the hearing. The trial court granted an injunction and the defendants appealed, contending no evidence supported it. The appellate court affirmed, holding that, although the trial court did not use “magic words” admitting the exhibits into evidence, the exhibits were discussed without objection, and the trial court’s order stated it was based on this

Texas Lawyers’ Assistance Program…………...(800) 343-8527

Alcoholics Anonymous…………………………...(214) 887-6699

Narcotics Anonymous…………………………….(972) 699-9306

Al Anon…………………………………………..…..(214) 363-0461

Mental Health Assoc…………………………….…(214) 828-4192

Crisis Hotline………………………………………..1-800-SUICIDE

Suicide Crisis Ctr SMU.…………………………...(214) 828-1000

Metrocare Services………………………………...(214) 743-1200

Martin Merritt

--Brad Jackson/ Commercial Litigator, Dallas

• Healthcare Trials/Hearings

Analysis of Illegal “kickback” contracts

• Enforceability of 15.50 Non-Competes

Insurance “Clawbacks”

• FBI, OIG, CMS Investigations

Medical License Revocations

Martin Merritt

Chair, DBA Health Law (2021)

Ex. Dir. Texas Health Lawyers Association

Martin@MartinMerritt.com

Dir. (214) 952.1279

Martin Merritt is your co-counsel in healthcare litigation cases. If one side has an experienced health lawyer in their firm and you do not, you can level the playing field by associating Martin Merritt as co-counsel.

You keep the client. Hourly and flat monthly rates available. Martin can try the case, prepare and argue hearings, or simply serve as health law analyst. You stay in control of the case and keep the client.

Experienced. Over 30 years, in Texas and nationally, Martin Merritt litigates cases against the FBI, DEA, OIG, CMS, AUSA, TMB, Tex. OAG, Tex. Med. Bd, Pharm. Bd., TXDSHS, Civil False Claims Act Subpoenas and lawsuits, civil investigative demands, arbitration, criminal and other administrative actions. He has a proven track record applying this knowledge to win victories for business litigators.

(D Mag. Best 2018, 2020, 2022) evidence. Kazi v. Sohail , No. 05-2000789-CV (Tex. App.—Dallas Oct. 28, 2021) (mem. op.).

In a similar appeal of a temporary injunction, a party asked the court to make its exhibits part of the record and take judicial notice of them.

The defendants appealed the injunction, objecting that the court improperly took judicial notice of facts. The appellate court held that even if the trial court did not formally state that the exhibits were admitted, it viewed the exhibits on Zoom and no one objected. G.L. Logistics Co., LLC v. Flores , No. 04-21-00125-CV (Tex. App.—San Antonio Aug. 31, 2021) (mem. op.).

Counsel Wanted Zoom, Appealed Trial Court Requirement of In-Person Appearance . An attorney objected to the court holding a pre-trial hearing in person and moved to appear by Zoom. The trial court denied the request, and the appellate court did not find reversible error. Tyson v. Freeman , No. 04-21-00351-CV (Tex. App.— San Antonio Jun. 29, 2022).

Just Because the Court Is on Zoom, Doesn’t Mean It’s a Hearing

An off-the-record, non-evidentiary, ex parte hearing held on a Sunday by Zoom with virtually no notice to the other party does not satisfy the requirement of a “hearing” required by statute. In re Mach , No. 13-22-00126-CV (Tex. App.—Corpus Christi-Edinburg May 3, 2022) (mem. op.).

Parties Responsible for Obtaining Remote Appearance Instructions

Before Trial . The respondent was personally served with notice of a final trial by Zoom. The notice ordered the respondent to contact the court at least 24 hours in advance for instructions on how to appear by Zoom. The notice also referenced the court’s website which listed the instructions. The respondent’s attorney contacted the court the day before the hearing to ask for Zoom instructions. The court sent the instructions to the attorney’s email address on file. Neither the attorney nor the respondent appeared for the hearing. When the judge called as a courtesy, the attorney explained that he had not received the instructions, they were sent to an old email address, and he had a vacation letter on file.

The court proceeded with a default trial. On appeal, the default judgment was affirmed. The appellate court held that it was incumbent on the respondent or his attorney to follow up with the court when they did not receive instructions, or to appear in person to explain. The court also held that TRCP 21a’s requirement of 3 days’ notice for a hearing does not apply to the court’s procedural instructions. Richardson v. Earle , No. 01-20-00630CV (Tex. App.—Houston [1st Dist.] Dec. 14, 2021) (mem op.). HN

Emily Miskel is the judge of the 470th District Court. She can be reached at emily@emilymiskel.com.