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In Pathri v Kakarlamath, decided by the Appellate Division on Jan. 23, Plaintiff commenced a matrimonial action in New Jersey before moving back to India. He couldn't obtain a visa to travel here for trial, but the Family Part denied his application to appear and testify from India by video transmission. The Appellate Division granted leave to appeal and remanded for reconsideration and further proceedings consistent with factors the court identified.

The Appellate Division noted that precedent precluded testimony by telephone in a 1988 opinion in which the proffered witness was not identified or referred to in discovery before trial and there was no basis to evaluate his credibility. See Aqua Marine Products, Inc., v Pathe Computer Control Systems Corp., 229 NJ Super. 264 (App. Div 1988) which the Supreme Court discussed positively in State v Santos, 210 NJ 129 (2012). Aqua Marine limited such testimony to "special situations in which there is either exigency or consent and in which the witness' identity and credentials are known qualities." The Pathri court noted the advances in technology and communications since Aqua Marine was decided, and that Rules addressed video testimony in other types of proceedings and did not "directly prohibit remote testimony by telephone" in civil cases. The Federal Rules of Civil Procedure now permit them "[f]or good cause in compelling circumstances and with appropriate safeguard[s]." In remanding for reconsideration of the issue, the Appellate Division referred to seven factors, among others to be considered, including "the witness' importance to the proceeding," the difficulty (and reasons) for the witnesses inability to appear, whether the inability was "foreseeable or preventable," the comparative costs of providing the testimony in person or by video, the impact of adjournment to provide the testimony in person, and whether the fact finder is judge or jury. Achieving justice in a matter fair to all parties is the polestar. The court further noted that video could be set up so the witness might be better observed than from the bench or jury box for purposes of evaluating credibility during the proceedings.

The court did not hold that the witness had to be permitted to testify by video conferencing, only that the issue should be considered and developed on the record. The opinion doesn't advocate use of video conferencing as a general rule or common practice, but as an accepted practice or procedure when appropriate. It promotes the ability to obtain live testimony, which might not otherwise be available, during a trial or fact finding proceeding.

We applaud the opinion which we do not consider to be revolutionary. In State v Crandall, 120 NJ 649 (1990), the Supreme Court upheld the use of closed circuit video to permit testimony of an alleged child abuse victim outside the presence of the defendant notwithstanding confrontation challenges in a criminal trial subject to Sixth Amendment protections. If it is acceptable in certain circumstances in a criminal proceeding, it should be in the civil setting as well. We have little doubt that attorneys will still prefer to produce critical and helpful witnesses in person, but there should be an alternative for consideration in appropriate circumstances where testimony is critical or significant and otherwise unavailable or available only for undue expense in the absence of a stipulation. We add that, as recent case law has made the limits of in personam jurisdiction clear, and that the defendant must "purposefully avail itself of the privilege of conducting activities within the forum" or "purposefully directed" its conduct in the forum state, it may be harder and more costly for non-resident plaintiffs to litigate and produce witnesses in New Jersey.

Each case is different; the reasons a witness might not be available or subject to production in the forum at a particular time is fact sensitive, and the position of the parties in each case is important. We believe that the use of video-conferencing and testimony should be encouraged because of the new technology and the need to save time and expense when it can be done without injustice to a party. In fact, the chief justice's notice to the bar, dated March 9, noted plans to "conduct virtual and telephonic court proceedings… if necessary;" and there was reference to the "use of video and telephonic equipment" in the chief justice and administrative director's March 12 Notice regarding ongoing proceedings while jury trials are suspended due to the new coronavirus. These notices and reference to leveraging "technological capabilities" in the related March 12 news release of the New Jersey judiciary all support further use a video conferencing and similar technology in future court proceedings. We applaud the Pathri court's recommendation that the use of video testimony be the subject of study and evaluation by a Supreme Court committee in the administrative context where experienced practitioners can have significant input.