Nov 12, 2020
Continuing my Receivables Management Association International (RMAI)’s Certified Receivables Compliance Professional (CRCP) training brings us to my second installment on their chief component of becoming certified, the Introductory Survey Course on Debt Buying. Perhaps even more important than my first article, the second portion of their training is a how-to on the alphabet soup of the numerous changes to the regulatory landscape. Understanding and following these statutes is a critical component to compliance and I am so pleased to highlight the crucial aspects of these laws.
Navigation of Federal Laws
As most of us in our industry are aware, essentially every interaction with a consumer or third party is governed in some manner by the Fair Debt Collection Practices Act (FDCPA), Consumer Financial Protection Bureau (CFPB), Fair Credit Reporting Act (FCRA), or Telephone Consumer Protection Act (TCPA). Within these federal statutes, especially the FDCPA, there are not only numerous vaguely worded statutes, but there are also thousands of judicial decisions based on them that give additional interpretations and allowances, both favorable towards consumers and our industry. Aside from this ambiguity, different judicial districts and active litigation add additional interpretations to the FDCPA, TCPA, CFPB, and FCRA. Still, though, a keen awareness of the generalities and interpretations of these Acts and Bureaus is essential for performing our jobs well.
Fair Debt Collection Practices Act (FDCPA)
Some of the more stalwartly established aspects of the FDCPA, often violated, are simple aspects that, if followed as a debt collector, will help ensure compliance. These include calling at reasonable times of day, no third party communications, not stating that the consumer owes a debt, seeking location information only once, and, very importantly, cease and desist is required if the consumer notifies in writing AND now even verbally, per regulators and consumer attorneys, that they refuse to pay. These are all fairly limiting to our practices, but savvy consumers can easily use these portions of the FDCPA to bring suits against our industry. Awareness of the current FDCPA climate is essential to working within the current compliance framework. In fact, the specific harassment and abuse and false or misleading representation portions of the FDCPA are very broadly written, and utmost care to not fall into any of these practices is essential for not only compliance but the smooth operation of our business. In fact, many consumers and attorneys representing consumers will even call upon the “meaningful involvement” portion of the FDCPA to state that collections attorney involvement isn’t actually representing the collector and this circular logic can stand in court under the FDCPA, as well as receiving support from the Consumer Financial Protection Bureau (CFPB).
An important aspect of communications and the FDCPA is how to leave a voicemail. Whether it’s a voicemail or actually speaking with the consumer, it is important to disclose your identity and purpose, but only to the person and not a third party. Given that a voicemail could be heard by a third party, by not stating the consumer’s name in the voicemail is a way around the FDCPA limits. Another FDCPA statute that can easily be violated is having the notice of your firm’s name or the aspect of debt collection on an envelope. Another aspect of the FDCPA to consider is notifying the consumer whether the debt is out of statute when attempting to collect. Considering the FDCPA’s validation notice and requirements, it’s best not to act on collecting or even communicating regarding the debt until after the 30 day period of notice to the consumer. Regardless of all these caveats, falling prey to any of these aspects of the FDCPA can cause untold harm to your compliance and bottom line. Being familiar with all aspects of the FDCPA is essential, but these included here are easy targets and things to consider and adjust your practices to accommodate.
Fair Credit Reporting Act (FCRA) and Consumer Financial Protection Bureau (CFPB)
The goal of understanding the alphabet soup of the FDCPA, CFPB, and the Fair Credit Reporting Act (FCRA) is to increase adherence and compliance and reduce headaches but to also assist our bottom lines. In our industry, we also must consider our adherence to the FCRA. Firstly, using consumer credit information is voluntary. To lessen compliance issues surrounding the FCRA, we as receivables management professionals can simply not utilize this resource. If one chooses to, however, the FCRA compliance bulletins must be followed. Furnishing credit data to consumers requires that the consumer must be notified in writing, ensure accuracy of all data, and respond to any and all disputes brought about by the consumer, following the CFPB and FCRA guidelines. Previously, prior to the CFPB, our industry would default to obtaining credit reports for debts, as a way to notify consumers of the effect on their credit of not paying their debt; however, the CFPB has changed the climate of these credit inquiries. If you choose to use Credit Report data, you must prove that you have permissible purpose to use that data as well as a “red flag rule” in place. Permissible purpose includes investigating a voluntary credit transaction that you are collecting on, which is simple enough; however, proving that only the allowed individuals in your organization have access to this data is a crucial component of this. The red flag rule is a system in place where your business has to investigate a possible identity theft situation, for instance, if mail for an individual keeps being returned. The inability to actually reach the person requires additional investigation under the FCRA.
Telephone Consumer Protection Act (TCPA)
Since its inception in 2015, many of us have become familiar with the TCPA but as an important caveat, we must be aware that the Federal Corporation Commission has very broadly interpreted the TCPA to include that any automated telephone dialing system (ATDS) to be any phone system that can predictively or progressively dial from a list of numbers without human intervention. It is important to note that Prior Express Consent (PEC) has a wide berth of interpretation. Obtaining people’s phone numbers from past papers and then simply asking if you can call this number counts as PEC. However, consent can be revoked at any time, which, of course, seems somewhat absurd, since most other terms of any agreement can’t be revoked, but at least knowing this gives some consolation should you be the recipient of such conduct. TCPA damages are steep so making sure you are calling the right number when attempting to collect can save you an exponential damages penalty. Some excellent tips, and things to keep in mind, even if you don’t make your own phone calls but another firm does on your behalf, in order to comply with TCPA are to check numbers for cell phones, do not allow pre-recorded calls without prior consumer consent, keep documentation of consents and revocations of consent, keep a record of how you obtained phone numbers, and if in doubt, simply dial manually as a way to avoid the tangle of the TCPA web!
And, of course, in summary, no seminar on debt buying would be complete without a nod to how bankruptcy accounts must be handled with care and properly documented; that you must comply with all state licensing requirements for debt buyers; that we in our receivables management industry must follow the Gramm-Leach-Bliley Act; all relevant consumer data security protections are in place. Keeping up with all relevant cases and government movement of the FTC and CFPB will help you keep your head above the rising tide of regulation and oversight that our industry must pay attention to and heed in our work.
Summary
Keep in mind that all of these federal rules and regulations, as well as keeping up with all the legislative changes and various court decisions can be quite a headache. As a Certified Compliance Professional, I keep up with these alphabet soups and related compliance as part of my job and daily operations. I enjoy summarizing and sharing this information, both old and new, as part of my best practices!
Disclaimer
This information is not legal advice and may not be used as legal advice. Information discussed or contained is not an explanation of the law and is presented for educational purposes only.
Nov 5, 2020
Continuing my Receivables Management Association International (RMAI)’s Certified Receivables Compliance Professional (CRCP) training brings us to the first installment of my article on their Introductory Survey Course on Debt Buying. This course is their chief component of becoming certified, and although the word introductory may cause some seasoned professionals to overlook these articles, not only is the regulatory landscape constantly changing, the information contained in this presentation and articles can be construed as somewhat basic but extremely crucial to compliance and excellence in operations.
In this first article, I’ll highlight some historical perspective for our industry but most importantly, discuss best practices and due diligence to help ensure compliance in our receivables management industry.
Debt Buying through the Decades
Wow, what a long journey it’s been for our industry over the decades! As our industry has evolved, we’ve learned so much about best practices. While various market conditions have changed the price and availability of debts for purchase, currently, we are chiefly affected by the Consumer Financial Protection Bureau’s (CFPB) regulations and rules, which has increased our cents per dollar on charge-offs for debt buying to all-time highs while subsequently reducing. To best work within this sphere, sound decisions on purchasing, which include no impulse buying of debts, buying from trusted and known sources, and thoroughly vetting and back-checking all debts are essential elements to maintain industry integrity and your bottom line in the long run. However, chiefest among the important caveats to follow for our industry is being certified yourself and, ideally, only working with certified individuals. Becoming certified, as I am currently doing through Receivables Management Association International (RMAI)’s Certified Receivables Compliance Professional (CRCP), is extremely important so that you cannot only work in an arena with less or no debt buying scams but also so that you can play a part in helping self-regulate our industry. If the professionals working in our industry self-police with best practices and compliance as their chief operating principles, regulation by the government through the CFPB can largely be hands-off, saving tax-payer money and our own time and energy as we perform our work.
Portfolio Evaluation and Due Diligence
Whether you’re a new debt buyer or the long-term compliance professional for your business, reading Receivables Management Association International (RMAI)’s Governance Document is an essential step to knowing how best to do our jobs ensuring compliance, thus protecting yourself and your business. Knowing the right questions to ask and what due diligence needs to be done to protect yourself and your business is essential to not only maintain compliance but help your bottom line as well.
While installment loans, consumer and business credit cards, and commercial leases are still the top three types of asset classes, peer-to-peer lending, auto installment loans, tax liens have become new asset classes debt buyers are turning to as our industry grows and changes. Mixed portfolios are common, so making sure you’re aware of all aspects of the portfolio you are buying, including whether you’re buying an “as-is” or standard reps and warranty file is the first line of information to understand what you’re buying. For instance, are there bankruptcy and deceased debtors included in the file, fraud accounts, verification of data in hard copies, do you have the ability to close and return uncollectable accounts? All these questions are important to ask to determine the level of debt present in a given portfolio prior to purchase.
Regardless of the type of debt, portfolio evaluation, and developing a plan to handle the debt prior to purchasing is arguably the most crucial step of our jobs. Scoring and segmenting accounts in a portfolio awaiting purchase is a very important way to understand what type of debt you will be working with. Additionally, knowing the strategy you will use to collect, whether legal or straight collections operations, is another important factor prior to purchasing any portfolios. This is largely due to the Office of the Comptroller of the Currency (OCC) restricting the amount of debt that can be litigated versus simply collected upon. The OCC left the term restricted intentionally vague, opening up additional potential litigation if due diligence to investigate what portion of the debt could be litigated could be construed as contestable.
Part of the portfolio evaluation includes looking at dates and demographic info. Aside from this basic information, similar to the information I discussed in my Lessons Learned in Debt Buying article, this Introductory Survey Course highlighted the importance of knowing the seller. While of course, an established relationship with a seller is a surer way forward, adequate vetting of the seller, documentation availability, post-sale customer service, and availability of a seller survey are all important aspects to consider as the buyer. If your seller doesn’t have a “Seller Survey,” (essentially a Frequently Asked Questions regarding a debt), you as the buyer should get these questions answered prior to purchasing any debt. Examples of important questions to be included in a seller survey include agency level, whether 1099’s were issued, what the charge off policies are, has there been scoring done prior to sale, are there representations and warranties, and geographic and demographic considerations are all basic aspects to consider; however, the more information you obtain, the better outcome you’re likely to have.
To keep both yourself, your employees, and your business above board, receiving and keeping masked consumer debt data as well as keeping these data secure is essential. Aside from simply masking data within your organization, it’s important to make sure to keep and transfer data securely, don’t disclose any data publicly and ensure encryption on your website, and, as I alluded to in my IT Disaster Recovery Plan article: have a plan for security breach and/or data loss. Additionally, another essential aspect of any debt buying is ensuring that there is a chain of title. Another important standard to consider is your insurance level. Ensuring that you are adequately protected to cover all aspects of your assets by meeting both the minimum amounts to ensure compliance and also appropriately mitigate your loss risk for premiums upfront versus potentiality of pay-out, or cost of protection versus cost of liability.
Additional considerations in buying any debt are considering post-sale issue risk mitigation. Sometimes, post-sale issues, such as a discrepancy of a direct payment date cannot be known prior to purchasing a debt, other post-sale issues can be avoided by due diligence. These supposed post-sale issues such as open litigation against a seller, account recalls, seller longevity, and documented agency requirements all can be vetted prior to a debt purchase with adequate due diligence and portfolio evaluation.
Disclaimer
This information is not legal advice and may not be used as legal advice. Information discussed or contained is not an explanation of the law and is presented for educational purposes only.
Oct 28, 2020
Always Be Learning
It may be easy for my colleagues to think that since our receivables management industry focuses largely on debt buying, a webinar on lessons learned would simply be typical, common day-to-day information; however, I found this Receivables Management Association International webinar highly informative, nuanced, and helpful. In fact, Willey and Dreifuerst (the webinar presenters) both acknowledged that even they, as industry veterans, are still learning.
The main focus of this information-packed one-hour webinar is secondary debt buying for small and medium debt buyers including the process of transacting, the vetting process, the fundamentals, what to be aware of during a purchase and sale, common challenges and misconceptions, and what the future looks like. Since buying different asset classes involves different procedure sets, the presenters made frequent allusions to the certification standards for each asset class, which I’ve included in this table for reference as a way to ensure that purchasing a debt is done within these certification standards and requirements.
Buying and Selling Best Practices
As debt buyers, it is our job to perform all the due diligence required prior to buying any debt. All aspects of the table above include aspects of due diligence, vetting, and finding out all crucial parts of the transaction.
One way of performing due diligence is ensuring open communication with the seller. Both presenters emphasized that direct buyer and seller communication is crucial in brokering an open transaction. This communication is the best way to get questions answered and ensure that the debt you’re buying is above board, properly documented, and all aspects of the purchase agreement are considered. Communication helps buyers get an overview of the offering and the seller’s expectations; it helps buyers decide if the product type and the seller’s requirements fit within your strategies.
Buyers will want to ensure that all documentation is part of the deal: the NDA, any certifications/licenses, the data security, any needed financials, errors and omissions, and all compliance tracking. Especially in today’s regulatory climate, it is crucial for buyers to audit sample documents in accounts from the data file, review data files for completeness, and negotiate Purchase Agreement terms, including post-sale support provisions.
Best practices for buying and selling all start with constructing the proper purchase agreement with the client. Additional standards can include Better Business Bureau reports, Dun numbers, and Consumer Financial Protection Bureau portal and information. Checking for all oversight on accounts is also a crucial step in all aspects of debt buying and selling. It is especially relevant, for instance, in any judgment file, to validate all debits and credits.
Future Directions
There is a large trend in the industry toward online transactions and lenders. Checking your state’s policies on e-signatures and internet transactions is crucial prior to undertaking buying or selling of this asset class. There are additional trends towards seeing other alternative asset classes (apartment leases, debt settlement, etc.) and as a result, our industry needs to pay extra attention to leveraging technology, watching for CFPB proposed rule changes, and, perhaps more so for new asset classes but crucial for all, always demanding all relevant documents for your transactions.
In Summary
Both Dreifuerst and Willey emphasized throughout the presentation, largely from their own errors during their careers, that documents can never be validated enough; there can never be enough questions asked; and, due diligence is almost never over. All transactions must be thoroughly vetted whether you are the buyer or the seller. Luckily, we at Tag Process are compliance professionals, and our focus on quality and developing strong relationships with our clients instills trust and proves that we are an excellent candidate for ensuring receivables management compliance and documentation, due diligence in our transactions, and the needed information and assurance to ensure smooth, problem-free transactions.
Disclaimer
This information is not legal advice and may not be used as legal advice. The information discussed or contained is not an explanation of the law and is presented for educational purposes only.
Oct 23, 2020
In this blog, I highlight the many legal avenues open to companies that may find themselves in the midst of a class action suit. Receivables Management Association International (RMAI) obtained two great lawyers to discuss class action lawsuit defense. These two top-notch industry defense attorneys, Tom Dominczyk and Brent Yarborough, provide excellent options for defendants in Fair Debt Collection Practices Act (FDCPA) cases and I highlight their summary points below. Of course, the best way to avoid the headache of any lawsuit is maintaining and ensuring compliance, one of my specialties at Tag Process. Nevertheless, the boon of “unsophisticated debtors” and attorneys willing to charge premiums to litigate debt collection notices continues unabated, in spite of many judges tiring of such cases clogging their calendars. Read on to learn ways to mitigate the damages resulting from involvement or implication in a class-action suit.
Strategies to Move Forward in the Event of a Class Action Claim
The first step upon learning you’re involved in a class action suit is correcting the issue that is being brought to light as a possible suit. Secondly, ideally, if you find yourself in a class action suit, the lead plaintiff may be open to settling individually. Without the option for settling, another option is fighting the case individually, still avoiding class discovery; however, this doesn’t insulate from future claims. Another option for dealing with a class action suit is allowing the statute of limitations to expire. If you receive a claim and then correct the issue moving forward, running down the clock with extended timing is one way to invalidate the claim. Of course, fighting the class suit is another option. Winning a class suit insulates against future claims in other jurisdictions; however, losing a class suit is an expensive prospect, regulators are alerted, and the announcement of the class action suit is public.
The decision on what you chose to do is largely based on what judge you receive. In fact, many judges consider cases similar to the Avila case as “lawyer’s cases,” simply giving attorneys work and not existing as valid claims. The decision on what to do is also based on your net worth, the net worth of the suit, whether the problem has been corrected, whether you can anticipate additional cases, and the skill and experience of the opposing counsel.
Arbitration
The first step is evaluating any claim for arbitration. Many times, class suits will settle prior to arbitration but many times, attorneys can assert the need for arbitration as part of the first counter-response. Arbitration avoids discovery and dispositive motions and judges are often very pleased to have a case sent to arbitration, clearing their calendar.
Dispositive Motions
If there is no provision for arbitration, filing a dispositive motion evaluating the merits of the plaintiffs’ claims early. For instance, if your plaintiff is in bankruptcy, this will negate any ability to move forward with additional claims. Under dispositive motions, there are legal avenues to strike the claim such as lack of typicality, lack of predominance, lack of superiority, or inability to determine additional litigants outside of the chief plaintiff; however, courts often believe that striking the claim is often premature. Dismissing or striking a class claim with no discovery is often not a valid avenue. There is often room to determine that the plaintiffs may not be able to actually establish a class.
First to File
It is also worth checking if there is a similar case in another jurisdiction, as a judge can simply dismiss a case if there is a similar pending case in a different jurisdiction. The cases do not have to be completely similar. This is a discretionary determination on a per judge basis, and some judges will consolidate the claim rather than dismiss. The dismissal will usually be without prejudice in case the currently litigated claim isn’t advanced however this action will also help stay the judicial clock. Depending on where the case is filed, offering the plaintiff an offer for judgment or tender will result in, essentially, a settlement, in which the defendant offers to pay the plaintiff (individually) to drop the claim moving forward prior to a class action suit. It is also important to establish as the defendant that any named class action plaintiffs are subject to the one-way intervention: all plaintiffs must accept responsibility for the judgment whether favorable or unfavorable to their perceived outcome.
Class Action Litigation
Should you find yourself in a situation in which you decide to move ahead with a class action suit, asking the plaintiff to bear the cost of notice for the additional litigants is a way to diffuse the furthering of the case. The initial notice of the suit is often judged to be the onus of the plaintiff since the liability of the defendant has not yet been established. Many times this is a cost the plaintiff is not prepared to bear, eliminating the class action suit altogether. Even before any litigation, an offer to the primary class action litigant will result in settling. An especially attractive offer to settle is offering to forgive the plaintiff’s debt. This will not be granted by a court and offers a quick way to avoid a case proceeding. It is crucial, though, to make sure that the plaintiff receives this offer, as many plaintiff’s attorneys have an incentive not to settle. A common concern is that by paying off a plaintiff, the attorney will simply select another plaintiff, which is a question you can ask before you choose to settle.
Net worth
Net worth at the time of resolution is how the amount of the class action is determined. Thus, the timing is important to consider when you might decide to settle. If you know your net worth will increase or decrease, this is an important factor to consider when determining a timeline for a class action suit.
It is also important to include goodwill in your net worth, which many courts recognize as part of your net worth and results in an increased value for your net worth. Whether the district court you are in considers net worth as book value or fair market value can more than double a company’s net worth. Since the FDCPA values class action suit payouts as 1% of the company’s net worth, whether your jurisdiction considers fair market or book net worth is highly relevant to any class action payout.
Ways to Mitigate Cost
Consumer advocate lawyers charge more than most business lawyers. It is thus important to have your attorney draft briefs and motions, as it’s possible to be judged that you are responsible for the plaintiff’s legal fees. It is also worthwhile to attempt to have the court help broker any settlement deal so the plaintiff can’t allege that the settlement offer isn’t fair.
In Sum
Class action suits are a huge headache! Luckily, with Tag Process’s strict adherence and knowledge of compliance issues in all areas and localities in which we work, we help insulate debt collectors from involvement in class action suits. Reach out to us today to find out how we can help you stay compliant and avoid the headache and cost of any lawsuits, but especially class action suits!
Disclaimer
This information is not legal advice and may not be used as legal advice. Information discussed or contained is not an explanation of the law and is presented for educational purposes only.
Oct 12, 2020
Welcome to my ongoing learning experience in becoming a Certified Receivables Compliance Professional (CRCP)! This week, we’re taking a break from the effects of and changes from COVID-19 on our operations and compliance and focusing on ongoing developments of case law in interpretations surrounding the Americans with Disabilities Act (ADA) and how this influences compliance and our business operations. First, we’ll start with the legal definition, rules, and mandates surrounding the ADA…
Definition and Enactment of the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) is a national mandate for the elimination of discrimination against individuals with disabilities. Legally, this includes the following mandates: 42 U.S.C.S 12101 et seq., EEOC Rule-Making Power – 12 CFR 1630 et seq., Secretary of Transportation – 49 CFR 37.1 et seq., and Attorney General – 28 CFR 35.101, 36.101, 37.1 et seq. While these federal mandates provide the legal framework, the layman’s definition is a physical or mental impairment that substantially limits one or more major life activities, which includes: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, and working. Even operation of bodily functions are included as part of the ADA: the immune system, cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and/or reproductive. Within this framework and definition, the ADA is divided into three titles. Title I is job-related, Title II is public transportation and Title III is the broadest: any private place that serves the public and must thus follow the ADA. This includes stadiums, rental properties, gyms, markets, schools, hotels, restaurants–any physical place that serves the public. Any public place may not deny a person with disabilities full and equal access to the goods and services offered at a place of public accommodation, with the only exceptions being places of worship or religious organizations.
ADA Compliance for Debt Collectors and Buyers
Aside from the Peroutka and Peroutka, P.A. case, there haven’t expressly been any cases on this point affecting debt collectors or buyers and the ADA, although it goes without saying that if a debt collector accepts walk-in payments, they must be able to accommodate persons covered under the ADA to enter and perform any relevant services that the business offers. The Peroutka case centered around two separate complaints of the firm not accepting voice relay calls from hearing impaired debtors. The Federal court ruled that Peroutka was in violation of the ADA. Thus, aside from the various TCPA (Telephone Consumer Protection Act) considerations of any debtor contact, there are additional ADA telephonic considerations that businesses must consider in their activities and accommodations. Compliance wizard (aka presenter of this ADA webinar), John H. Bedard, Jr. recommends that all businesses should read the Peroutka and Peroutka case (especially Exhibit A) in order to better understand the changes and policies that the Peroutka et. al. firm had to implement after the case to fully comply with the ADA.
Aside from utilizing this national case law reference, considering that our activities as debt collectors and buyers are often conducted by our websites and remote payments by this method, what US circuit court you operate in depends on how you comply with the ADA and whether you must utilize the physical or purposive interpretation of non-physical spaces (e.g., websites) requiring ADA accommodation and compliance. No matter which states you operate in, allowing ease of access for all your clients and consumers by utilizing web readers, large text options, and other various ADA web-based accommodations can help your bottom line by accepting all payments from anyone. A helpful tool to check your website for ADA compliance is the World Wide Web Consortium’s Website Accessibility Initiative which includes website content accessibility guidelines. Businesses can test their own websites with the tool to ensure ADA compliance. Presenter Bedard, Jr. used this tool to check RMAI’s website as well as the Equal Employment Opportunity Commission (EEOC), who is tasked with enforcing the ADA. Ironically, RMAI’s main page of their website returned four errors while the EEOC’s returned 13.
Summary
I am finding it fascinating to consider topics I may not have thought of affecting business operations and compliance as I expand Tag Process’s operations and management. I appreciate learning about case precedents across the country and their effects on my business decisions and abilities. We all know that compliance is the key to operating consumer-centric client relations and I appreciate the opportunity to get ahead of the curve by learning and sharing national case precedents on relevant topics with others. Contact me today to find out how Tag Process can increase your compliance and consumer relations.
Disclaimer
This information is not legal advice and may not be used as legal advice. The information discussed or contained is not an explanation of the law and is presented for educational purposes only.
Oct 12, 2020
Remote Hearings create Challenges to Due Process
COVID-19 has created enormous challenges for gatherings of people, including court proceedings. Courts across the country have been adapting to accommodate remote hearings but these changes are fraught with potential issues resulting in lack of adequate due process. Zoom has created a Zoom for Government in the last few months to accommodate the security needs of judicial proceedings; however, there are still numerous challenges in accommodating remote hearings. For instance, some litigants may not have access to the technology to accommodate participation in a remote hearing or there may be language barriers that are harder to accommodate remotely. Another hurdle that courts have had to adapt to accommodate is the introduction of evidence to the record. Securely sending documents through the mail or digitally requires many more steps and procedures than the typical introduction of secure documents manually. Remote swearing-in of witnesses is another issue courts have grappled with performing remotely. Additionally, creating a secure environment for cases presents a challenge. With everyone working from home, someone’s family member existing in the background of a hearing could result in unauthorized “participants” to the trial.
Courts have learned to state that unauthorized reproductions of materials cannot be distributed, thus ensuring that all cell phones, digital recordings, etc. of all participants are not occurring but guaranteeing this request remotely presents an entirely different challenge. When proceedings are available to the public, the courts have had to ensure that they meet this requirement, using streaming platforms such as YouTube to present the proceedings, presenting yet another avenue for inadequate procedural process if there is any technical glitch. In instances such as this, a technical glitch can result in the inadequate due process occurring and the proceedings being nullified. Conversely, when confidentiality is required, the procedure set can become even more cumbersome for the courts to accommodate remotely: the need to guarantee confidentiality remotely by excluding third party access, hacking, and unauthorized recordings present logistic challenges as courts adapt to remote operations. Imagine needing a break-out room to discuss confidential issues between an attorney and client but not being sure that the digital space given to do this is secure and private, not only from unauthorized “participants” but that the break-out room is guaranteed to be private from the opposing side and judge.
Productivity and Professionalism
In addition to ensuring that participants have access to remote hearing technology, adequate bandwidth for continuous video recording is yet another challenge that must be overcome for a hearing. Additionally, something as simple as participants ensuring that they have adequate charge for their devices for the entire proceeding has been a hurdle trials have had to overcome, adjourn for, and cause untold disruptions. It has been challenging for even attorneys to remember that these remote hearings are considered by the judicial system as official proceedings. There are stories of not only litigants but attorneys as well showing up for hearings not wearing pants or shirts, taking their video recordings into the restrooms, or having children or dogs constantly interrupting the proceedings. While these examples are extreme disruptions, smaller ones also need to be considered, such as your camera angle, what’s in your background, how close you are to your microphone, and whether you can be heard. Additionally, participants may need their names shown on the screen to document participation. In an instance like this, participants need to ensure that their computer or log-in name is theirs and not another family member or even some inappropriate username.
The lag of audio and video in remote proceedings can truly create challenges for the timing of communications, with even accidental interruptions of another participant causing disruptions, making someone seem contentious, as well as causing issues for the court reporter. Truly acting as if participants are IN the courtroom is the first and most crucial aspect to consider for a successful remote hearing. Making sure that participants have practiced is also very important: testing audio and video, testing internet bandwidth and capability for both attorneys and litigants, as well as checking your monitor and background are crucial to setting up for success in remote judgments. Ensuring that participants are on time or not fumbled by technical difficulties on a full docket could cause a harsh judgment for a participant being absent.
Summary
As our lives continue to be affected and changed by COVID-19, we’re not sure which changes are here to stay and which aspects will “return to normal.” As these changes in court proceedings become more and more commonplace, the likelihood that remote hearings could become the norm, especially in civil matters, increases. Thus, adapting and adopting best practices for these changes is essential for short-term success and likely in ensuring long-term success in legal proceeding participation.
I truly value learning the ins and outs of legal proceeding changes in our new normal. While at Tag Process our focus on compliance offers us the ability to avoid court proceedings in our day to day business, awareness of the changes and how to best navigate due process is always part of learning and ensuring best practices moving into the future.
Disclaimer
This information is not legal advice and may not be used as legal advice. Information discussed or contained is not an explanation of the law and is presented for educational purposes only.
