computer+hearing San Antonio — Part 3: Can I get a family law hearing in San Antonio right now?

Bexar County will be doing webcam hearings via Zoom, and using GoogleDrive to upload exhibits. They will also be requiring something else of attorneys appearing in their virtual courtrooms...

NOTE: Texas courts are adapting quickly to the pandemic… in my last two posts, I covered how the courts in Austin (Travis County), North Austin (Williamson County), and San Marcos (Hays County), are handling the Coronavirus crisis by converting to “virtual courtrooms” and “teleconferences,” aka webcam and phone hearings. In this post, I cover San Antonio (Bexar County).

What about San Antonio? Can I get a hearing in family law court right now?

Glad you asked. I just reviewed the First Amended Bexar County Civil District Courts COVID-19 Court Operations Plan. It came out April 2nd, and is a 5-page PDF you can get on the Bexar County District Court website here, https://www.bexar.org/1703/Civil-District-Courts (I have also added it to the very end of this blog post if you scroll all the way down).

The Bexar County order is careful to say that this plan is in effect, “beginning April 6, 2020.”

It also says that, “all cases, wherever possible, will be heard remotely by the Civil District Judges. Essential matters will be given priority.” This seems to fall in line with Williamson, Travis, and Hays Counties, who are giving priority hearing dates to cases deemed “essential,” such as emergency hearings, protective orders, habeas corpus proceedings – basically, the usual suspects of cases that need immediate court attention.

However, their process for actually scheduling your hearing, is a little different.

Bexar County, like Travis County, has a Presiding Court. (Meaning on the date of your hearing you go to one main judge who calls the docket, and then assigns cases to judges who are available. Aka the life-is-like-a-box-of-chocolates-docket).

Bexar has set up clear procedures for how their chocolates-docket will work. Bexar, like Travis County, has chosen Zoom as their platform of choice.

So you can set a hearing with the Presiding Court via Zoom or telephone conference. Settings must still be in writing –in accordance with the Bexar County local rules. Now they must contain certain extra case information, and certain types of cases must occur by Zoom. These types of settings must now also include the Presiding Court Zoom link, the Presiding Court Youtube channel link, the Presiding Court phone number, and the Presiding Court access code for Zoom. (It’s in the PDF).

Their Presiding Court Zoom link is here… hhtps://zoom.us/my/bexarpresidingcourtzoom I like how they call it “Presiding Courtzoom.” Yes, I’m a sucker for a dumb pun.

And yes, you read that right. They also have a Bexar County Civil District Presiding Court YouTube channel… https://www.youtube.com/watch?v=ljERoVIGR2Q

Why a YouTube you ask? Is this a chance to become the next Judge Judy? Sadly, no. It’s due to the “open courts” provision of the Texas Constitution, which requires that our courtrooms be readily available and accessible to the public. For that reason, a lot of judges are creating YouTube channels so you can watch them from home. (I’ll probably cover this in a separate blog post. Just trust me, it’s happening. We’re all going to be on YouTube in the future).

(For those who want to nerd out, here’s a case elaborating on the Texas Constitution’s “open courts” provision… if you don’t care, just scroll past it).

Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 636-37 (Tex. 1996) ("The Texas Constitution provides the following 'open courts' guarantee: . . . . This provision includes three separate constitutional rights: (1) courts must actually be available and operational; (2) the Legislature cannot impede access to the courts through unreasonable financial barriers; and (3) meaningful remedies must be afforded, 'so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants' constitutional right of redress.'")

After you set your case, the Presiding Court will call your case on the Youtube and Zoom channels, and assign your case to a judge. Don’t worry, you don’t have to watch. These “case assignments,” which are essentially a digital docket, will be posted on both the Zoom and Youtube channels listed above. (I admit, I don’t quite get how this will work in the real-world. I understand the gist of it, but for any serious questions check out the link to the Bexar County COVID-19 order and also give this Youtube CLE a watch, which can be found on the Bexar County Women’s Bar page. The Bexar County Women’s Bar deserves a special shout-out for creating this CLE so quickly, so everyone can understand how this process works).

What about setting an emergency hearing or TRO (temporary restraining order) hearing?

You can call the Presiding Court number and ask to be heard that way. Basically, the courts are asking that you have all of your pleadings and exhibits in electronic form, so the court can review those remotely. Scanning is the new copying. The clerk will email you with an invitation for the Zoom link (for the hearing) and a GoogleShareDrive link - designated for your specific case and litigant. There will be a folder for pleadings, exhibits, etc. so you can upload all of your documents into the GoogleShareDrive folders. The judges are now requiring attorneys to have their exhibits labeled and scanned in. Interestingly, if you have any medical records or health records protected by HIPAA, the responsibility is on the attorneys to keep the records encrypted as they travel through the space-time-Internet-continum. Apparently, GoogleShareDrive is HIPAA compliant.

For the most part, for exchanging documents between attorneys and litigants the judges are saying that the parties and litigants can agree on how to share their files. If they prefer Dropbox, for example, the judges are going to be lenient on that. (This is good news for those of us who are used to Dropbox or just email).

What about setting agreed hearings in Bexar County?

If your hearing doesn’t require evidence, or is agreed, or just a motion requesting something from the judge, then the Presiding Judge will assign you to a specific judge via email to that Judge and their Clerk. The interesting thing is that depending on the judge you’re assigned to, it could be a telephone or Zoom hearing. You’re also supposed to email the judge your pleadings, exhibits, and things you will rely on in advance of the hearing.

Do I have turn over my exhibits 24 hours before the hearing?

Yes. For actual contested hearings, just like Williamson County, you have to turn over your pre-marked exhibits to the other side no later than 12:00 p.m. the day before the hearing. (Again, ruining all the surprise-fun).

What’s this I hear about attorneys having to keep a list of exhibits that are “ADMITTED” and “NOT ADMITTED”? Seems a little unfair.

You’re right. Great insight. It is. For whatever reason, in Bexar County they are now requiring attorneys to not only keep original exhibits (not that unusual), but to email the court reporter after the hearing, with a record of the exhibits that were “ADMITTED” into evidence and those that were not.

This seems a little much.

Right away, this sets my alarm bells off. This policy could lead to some serious game-playing and requires a lot of trust in the lawyers.

If a case is appealed, the appellate courts look at the trial exhibits that were admitted, as those were the exhibits actually reviewed by a judge in making her decision at a hearing. If an attorney “accidentally on purpose” deems an exhibit “ADMITTED” that was not in fact, admitted at trial, that could change the outcome of the appeal.

Not only that, what happens if a lawyer makes an honest mistake about whether a document was “ADMITTED” or not? Does this mean they’ll face some serious career and license ramifications? No, c’mon, that would be extreme. (Just wait, till you get to the end of this post).

The keeping of exhibits is usually run by the court reporter. Court reporters aren’t really known for this, because they’re, uh, busy reporting, but they actually do a fantastic job of gatekeeping the exhibits in a courtroom. A court reporter is the one who labels the exhibits, monitors the courtroom so witnesses don’t walk off with them (happens all the time), gets them back from the lawyers (we do it too), and at the end of trial organizes the exhibits that were relied on, “ADMITTED,” in the judge’s ruling, and those that were not, “NOT ADMITTED.” In most counties, the exhibits are kept and filed with the rest of the case documents after a hearing. To saddle attorneys with this job is not only onerous, it’s potentially dangerous.

For a lawyer, trying to advocate and win for their client, not only does he have to make an opening statement, manage witnesses, examine witnesses, make objections, offer exhibits, assuage his client, and make a closing argument, now they also have to keep track of dozens of exhibits in the middle of their trial. And at the end of a long, sometimes, multi-day trial? And all while learning a new online virtual web-camera court system-thingie? I feel like this may not be the best idea. How do I insert a cringe-face emoji? (Seriously. I need web-training).

As if I wasn’t worried enough, at the end of their 5-pager, they issue a scary, all-caps, warning,

“ZERO TOLERANCE POLICY

THERE WILL BE NO TOLERANCE FOR ATTORNEYS TAKING UNFAIR ADVANTAGE OF THE SITUATION CREATED BY THE COVID-19 PANDMIC. ANY SUCH CONDUCT SHALL BE REPORTED TO THE STATE BAR OF TEXAS DISCIPLINARY COUNSEL ON THE FIRST OFFENSE. ALL JUDGES AND LAWYERS AS OFFICERS OF THE COURT, ARE CALLED UPON TO CONDUCT OURSELVES IN ACCORDANCE WITH THE TEXAS LAWYERS’ CREED.” (emphasis added by me)

Did you catch that bolded, capitalized, sentence? They will report any funny business to the state bar, as they should, but this could end up going really bad for anyone who makes a genuine mistake. I can’t imagine how this might go in a multi-day hearing with more than 20 exhibits.

Unfortunately, I think this one huge difference in Bexar County, could make it unusually burdensome to try cases there.

If there is a risk that, if I mark an exhibit “ADMITTED” inadvertently when it was “NOT ADMITTED,” that I will be reported to the State Bar, won’t that have a chilling effect on whether I want to try cases there? Should my malpractice insurance increase if they know I practice in Bexar County with this policy in place?

Maybe I am overthinking it, and it will all be ok.

Afterall, there will be a record to listen to and fall back on, to remember what was admitted, and what wasn’t. It will be a pain, but it will be there. (For what it’s worth, court reporters will be at most of these webcam hearings too. The court reporter will still keep the official record of the court. With Zoom, the hearings may be electronically recorded, but they are careful to remind us, Zoom is only a backup). As you can imagine, the courts, like the rest of us, are figuring this out as we go.

I’m hopeful the wrinkles get smoothed out. As one judge pointed out, the judicial system and rules of evidence have been established over centuries, and we are just setting up this new way of webcam hearings in a matter of weeks. WEEKS. Think about it. (I mean, if my mom can learn Snapchat, we can adapt). For the most part, we are all doing really, really good. Things will even out. We just have to Zoom out and look at the big picture. (I know, even I’m embarrassed at that one).

Our court system is still chugging along. The courts are still open.

-M