The New Jersey Court Rules do not explicitly provide for a party’s trial testimony “by way of contemporaneous video transmission,” but they do not specifically prohibit such testimony either. This gap is somewhat surprising given the many ways in which technology has been incorporated into the practice of law. In Pathri v. Kakarlamath, A-4657-18 (App. Div. Jan. 23, 2020), the Appellate Division updated and refined the factors a court should consider when evaluating a party’s request to appear by video transmission at trial.

This guidance could not have come at a more opportune time given the challenges presented by COVID-19. Indeed, Chief Justice Rabner’s March 12, 2020, Notice regarding the status of court operations during the COVID-19 pandemic made clear that for the “coming days and weeks,” the judiciary would conduct much of its business, including non-jury trials, with the use of video and telephonic equipment. Notice, COVID-19 Coronavirus – Status of Court Operations; Immediate and Upcoming Plans (Mar. 12, 2020). In the current environment, it is essential that practitioners familiarize themselves with the circumstances in which remote trial testimony is permissible.  

The Facts