Teleconferencing in the United States

The practice of permitting attorneys and litigants to take part in or monitor
hearings by telephone is widespread in bankruptcy courts, and the
particular practices vary greatly among judges and districts. Many courts
and judges have adopted rules, procedures, and guidelines for telephonic
hearings. Matters covered in local rules and general orders include the following:

• the substantive matters in which telephonic participation is encouraged or permitted, and, conversely, the matters in which it is discouraged or prohibited;
• the type of argument or evidence that is allowed or prohibited to be presented telephonically;
• circumstances under which certain types of attorneys or participants (e.g., local versus out-of-town attorneys or parties, witnesses, pro se parties, pro bono attorneys) may participate telephonically;
• whether a telephonic appearance must be requested or noticed in advance, and whether good cause must be shown and leave of court granted;
• the technical and logistical requirements for scheduling a telephonic participation, including whether it must be accomplished via a designated service provider, whether the call is initiated by the lawyer or party or by the court, and how scheduling continuances are managed;
• provisions for requesting and scheduling emergency telephonic hearings;
• instructions for joining a proceeding by telephone;
• a code of conduct for participating by telephone;
• how the record will be made and special provisions for ensuring its quality;
• prohibitions against private recording and broadcasting of the court proceedings; and
• the consequences of failing to follow the permitted procedures In the sections that follow, we summarize how courts have dealt with some of these issues based on our review of local authority and on interviews with bankruptcy judges and court employees.

Means of telephonic connections

The choice of hardware and service vendors affects the cost of making
each telephonic connection, the source of payment of that cost, the number
of connections available at a given hearing, and the amount of assistance
that the court requires from outside vendors. Two basic models
that vary on these factors have developed in recent years—one in which
the parties pay the costs for a third-party service provider, and the other
in which the court provides a dedicated line for teleconferencing and the
cost is borne by the local court or the Administrative Office. Some courts
use both of these approaches, depending on the type of hearing, the type
and number of parties, and the number of matters scheduled for a particular
time. For some matters, a court might use neither, and instead rely
on simple conferencing capabilities on a non-dedicated courthouse
phone or an attorney’s office phone. Each of these approaches is discussed
below.

Third-party providers of teleconferencing services

Many bankruptcy courts hold most of their telephonic hearings using a
commercial intermediary that arranges the conference call and charges
each participant a fee, while providing the service to the courts without
charge. The primary advantage of such services is that neither court staff
nor lawyers are required to coordinate the time or logistics of the appearance.
The teleconferencing services provided by two leading third-party
providers, CourtCall, LLC and CourtSolutions, are described below to
show the features providers may offer.

Attorneys or parties make arrangements with the third-party service
ahead of time to call into a scheduled hearing or proceeding using a designated
telephone number. Before the scheduled hearing, CourtCall provides
the court with a list of people who signed up for the teleconference,
including each person’s law firm and telephone number and an indication of whether the person intends to participate or simply monitor the proceeding. The court can download the CourtSolutions teleconference list from the provider’s “Home Page.” The printable PDF includes a photograph of the person, the person’s name, the name of the law firm, the
case number, and a designation of live or listen-only participation.
CourtCall’s operators monitor each call. The operator can disconnect
anyone whose environment or telephone equipment is distracting. Court
personnel can contact the operator by e-mail to report noise problems,
which may arise if an attorney is using a speakerphone or is making the
call from a location with much ambient sound, such as in traffic or an
airport.

CourtSolutions has a visual interface that allows the court to see who
is on the line and who is speaking and that gives the court control over
the teleconference (e.g., by adding participants to the conference or removing
them, determining who can speak and when, and determining
who can be in listen-only mode). If a party is creating a noise problem,
someone in the courtroom can mute the party’s line. Parties can see that
their lines have been muted, correct the problem, and unmute the lines
themselves. If necessary, CourtSolutions staff can join the conference to
assist with the problem. CourtSolutions also offers document sharing,
which allows uploading of documents that participants can download
while on the line. Any Word, PowerPoint, PDF, or Excel document can
be shared with the court and everyone else on the line.

The primary disadvantage of third-party services is their expense.
Some judges and courts require the use of specific conference call providers
(e.g., CourtCall or CourtSolutions), but may make exceptions for
certain types of parties and situations (e.g., specially set matters in which
one of the parties assumes responsibility for organizing the teleconference).
Other judges reject the use of such third-party services because
of their expense to the parties.

Some courts’ policies regarding the use of third-party services assume
that requiring the use of such services would unfairly deny access to
the courts or to attorney representation for some types of litigants. Accordingly,
some courts explicitly waive the third-party services’ fees for
debtors whose filing fee has been waived and for attorneys who are appearing
pro bono. See, for example, the telephonic appearance procedures
in the Middle District of Pennsylvania, the Northern District of
Florida, and the Southern District of Florida. Also, see the websites of CourtCall, LLC and CourtSolutions for more information. Other courts
do not require pro se debtors appearing telephonically to use the thirdparty
service in certain types of hearings, and the court initiates the call
through a court line instead. See the provisions in the Southern District
of Florida regarding telephonic appearance by pro se debtors at reaffirmation
hearings.

Dedicated teleconferencing lines funded by the Administrative Office or the local court

Some courts use so-called meet-me lines, the expense of which is borne
by the judiciary. A “meet-me” line is a hardware switch or software device
that functions much like a party line in which many callers can participate
at one time. Once the courtroom deputy clerk has opened the
line, callers dial the conference number, which is posted on the court’s
website, and are immediately connected to the hearing without being announced.

The court pays a set fee per month for each “meet-me” line. As
appropriate for the matters to be heard, the court may schedule all the
matters for the beginning of a court session (“deep set” them) or may set
them individually. In either case, attorneys are advised to call the conference
number just prior to their assigned hearing time. If multiple matters
are set for the same time, the attorneys and parties must wait until their
case is called. The court, rather than a third-party operator, must determine
who is on the line and monitor the calls for quality and compliance
with court procedures.

The Administrative Office offers a similar product—the AT&T TeleConference
Center—free of charge to all bankruptcy courts. It operates
in the same basic way as the commercial “meet me” lines, and it has the
same advantages without taxing the court’s local budget. As it does with
the commercial lines, the court must administer its use, which has both
advantages and disadvantages. For more information, see the online resources
in Appendix D. Also see the procedures of one of the judges in
the Central District of Illinois concerning the use of the AT&T TeleConference
Center.

Conference calls initiated by the court or a party on non-dedicated lines

Some courts connect one or more participants using conference call features
on the court’s regular telephone system. Similarly, some courts
permit parties to set up a conference call and join the court and other
parties into the call. This may be an efficient way to hold a hearing or
status conference involving only a few participants that must be scheduled
quickly. The number of participants that can be accommodated using
such conference call procedures is more limited than the number accommodated
with dedicated conference lines or third-party teleconference
services, and if one of the parties is organizing the call, the court is
subject to the reliability of that party’s teleconferencing equipment.

All teleconferencing calls, whether initiated via a third-party service,
a dedicated line, or a court or party non-dedicated line, can be distributed
through the courtroom’s audiovisual system. This allows the judge
and all court participants to hear one another and the court to record the
proceeding.

Obtaining permission to participate telephonically

Some courts require that attorneys and parties obtain prior permission
from the court to appear telephonically. Others require attorneys and
parties to provide notice that they plan to do so, and still others merely
require attorneys and parties to make arrangements with the third-party
teleconferencing service. Courts typically set a timeframe before the hearing
within which attorneys and parties must obtain permission or provide
notice. Attorneys request such permission or provide such notice in
some courts by e-mail and in others by telephoning the courtroom deputy
clerk.

Requiring attorneys to provide notice or obtain permission to appear
by telephone allows the court to control the number of participants, as
well as to document their identities and the matters on which they will
appear. This control is critical to a court’s ability to manage the docket,
particularly when a large number of matters are all set for the beginning
of a court session (i.e., “deep-set”). As mentioned earlier, third-party teleconference
services make available a list of participants to the court prior
to the hearing.

Some judges or courts have different requirements or standards for
participants who regularly practice in the district and those who practice
outside the district. For example, some judges will not allow local attorneys
to appear telephonically, because with the exception of emergencies,
it is not unreasonable for such attorneys to appear in court. The same
judges may routinely allow the use of teleconferencing for out-of-state
attorneys.

Types of proceedings in which courts allow telephonic appearances

Most judges use teleconferencing primarily for routine, uncomplicated
matters, and most are more comfortable allowing telephonic appearances
for hearing legal argument than for presentation of evidence. Although
most do not use it for appearances in evidentiary hearings, particularly
hearings with extensive documents or witnesses, they might permit attorneys
and parties to monitor evidentiary hearings by telephone. They
may find telephonic appearances useful in such matters as pretrial conferences,
status conferences, preliminary hearings on motions that may
ultimately require evidence, motions to dismiss, summary judgment motions,
and conferences to discuss case management.

Competing views about pretrial conferences

Some judges view in-person initial pretrial conferences as an opportunity
for the attorneys and litigants to meet and either settle the matter in its
entirety or at least make inroads in resolving disputes. Such judges may
discourage the use of teleconferencing for such conferences or allow it
only under limited circumstances. Other judges, perhaps focusing more
on the efficiencies of teleconferencing, actively encourage its use for pretrial
conferences and for routine, status conferences.

Evidentiary versus non-evidentiary hearings

As stated earlier, most judges use teleconferencing primarily for proceedings
and hearings that do not require documentary or testimonial
evidence and that are focused exclusively on case management or matters
of law. Some judges allow its use when documentary evidence is necessary,
but they require that evidence to be shared in advance. This is typically
accomplished by requiring the parties to file the documents electronically
by a date certain prior to the hearing so that all participants can
access them via CM/ECF. See, for example, Nebraska L.B.R. 9017-1, which requires exhibits to be electronically filed by the deadline set by the court or at least three days prior to the hearing.

The local rules also prescribe the format in which the exhibits are to be filed to facilitate their
accessibility by all parties and their introduction into evidence. See Appendix
J to the Nebraska local rules, and see also Wyoming L.B.R. 9070-1.

Some judges will permit testimony by telephone, particularly if the
testimony does not require the court to determine the credibility of the
witness, such as when the subject matter is uncontested or is not expected
to evoke questions from the court or cross-examination by opposing
counsel. In these instances, judges may require the consent of
both parties for the witness to appear remotely or may require that a notary
public swear in the witness with lawyer-provided identification.

Some judges will allow testimony by telephone even in more complex
matters, in emergency situations, and when out-of-town attorneys or
parties are involved. Judges may allow the use of teleconferencing when
hearings involve distant creditors for whom travel is expensive or timeconsuming.
With the consent of all parties involved, a judge may allow remote witness testimony when the costs of an in-person appearance are disproportionate to the value in dispute.

Pro se parties

Courts take varying positions regarding the telephonic appearance of pro
se parties. Some courts do not explicitly indicate whether pro se parties
may participate by phone, but some courts routinely include pro se parties
in teleconferencing policies by using phrases such as “any attorney or
pro se party” or “counsel and pro se parties” (e.g., Middle District of
Pennsylvania, District of New Hampshire, Southern District of New
York). The procedures of other courts implicitly assume that pro se litigants
may participate telephonically in some types of matters by explicitly
prohibiting them from doing so in other types of matters. See, for example,
those for the Southern District of New York, in which “counsel
and pro se parties are not permitted to participate telephonically for any
hearing of an evidentiary nature.”

Other courts, however, explicitly prohibit pro se debtors from participating
by telephone (e.g., the District of Maine), and some indicate
that telephonic appearances by pro se parties are rarely permitted (e.g.,
individual judge procedure in the Central District of Illinois). Other
courts indirectly prohibit pro se debtors from participating by telephone
by disallowing certain types of hearings, such as reaffirmation hearings,
to be held telephonically (e.g., the District of New Hampshire).

Telephone courtesy and the control of ambient noise

Many courts, by either local rule or general order, set forth procedures
for teleconferencing, including consequences for violations. These courts
view teleconferencing as a privilege for the convenience of the parties and
may therefore suspend telephonic appearance privileges or impose other
sanctions on attorneys for repeated failure to mute the line when not
speaking, or for otherwise disruptive or discourteous telephone conduct.
Some judges do not allow certain attorneys to appear telephonically if
experience shows they have difficulty communicating effectively over the
phone.

The use of cell phones and speakerphones is often addressed in the
court’s procedures. The quality of the call is critical in ensuring that the
court proceeding runs smoothly and that a high-quality record can be
made. Recognizing that the use of cell phones and speakerphones can
affect the quality of call transmission and that cell calls are more likely
than landline calls to lose the connection, some courts prohibit their use.
To minimize ambient noise, some courts also prohibit the use of phones
in public places, which may contribute too much background noise. If
cell phones are allowed either routinely or in an emergency, the court
may provide particular guidance about their use.

Sometimes both a party and that party’s attorney want to participate
by phone from the same location to facilitate their own communications.
Because some courts do not allow the use of speakerphones, in such instances,
the attorney and party must make arrangements to call in separately
or be on two separate receivers for the same line.

Courts generally also advise participants to mute their telephones except
when speaking, and if a third-party service is used, this is often accomplished
through that service.

Rather than having prohibitions against certain types of phone connections,
some courts take a goal-oriented approach that requires parties
to minimize extraneous noise and phone static at the risk of having their
line muted or disconnected or their teleconference privileges suspended.