WCAB Expanding Telephonic Appearances, but some Attorneys Skeptical

"...his firm's belief is that 'we should be present at appearances so we get the full impact of the event,' no matter what it is. 'Court was meant to be a place where everyone sees each other eye to eye'"   Alan Gurvey

The California Workers' Compensation Appeals Board has been allowing attorneys to literally "phone in" appearances using a program known as "Court Call" for well over two years.

The program is in place at 15 boards, and the department is in the process of setting it up in another six.

But the program doesn't seem very popular – at least not in the workers' compensation arena. 

Some attorneys prefer to be physically present when presenting issues to a judge, and many say they've never used the program. Those who have, say they used it for civil matters, not workers' comp cases.

California's comp boards are the only workers' compensation tribunals to use Court Call, a Los Angeles-based company founded in 1995 that provides equipment and scheduling services for video and telephonic appearances.

All of California's superior courts and federal trial courts are equipped for Court Call, as are the WCAB facilities in Anaheim, Bakersfield, Long Beach, Los Angeles, Marina del Rey, Oxnard, Pomona, Sacramento, Salinas, San Jose, Santa Ana, Santa Barbara, Santa Rosa, San Diego and Van Nuys.

DIR spokesman Peter Melton said that the boards in Riverside, Stockton, Oakland, San Bernardino, Fresno and Redding are in the process of getting set up with Court Call equipment. The boards in San Luis Obispo, Eureka and San Francisco will soon be following suit, he said.

But defense attorney Christopher Philippides of Mullen & Filippi said he's not seeing the system used at the Sacramento board where he mainly appears. He said he thinks the attorneys in his neighborhood "like to go to the board," so he doubted the Court Call program would ever become very popular in his neck of the woods.

The board, Philippides said, is "where we do our business," and "we all like the face-to-face time." That's part of what's fun about being a comp lawyer, and "it's the way business has always been done," he said.

Philippides related that he's had "maybe three cases" where opposing counsel wasn't local, and used Court Call for appearances to take a matter off calendar.

From what he recalled, Philippides said, "it worked rather smoothly."

He said he had no problem with opposing counsel calling in, because he understood "nobody wants to drive two hours just to take something off calendar," but he said he "would have been frustrated" if he had showed up expecting an actual settlement conference to take place.

Philippides opined that Court Call "works" for simple appearances, but he didn't think an attorney could effectively conduct a trial through it.

"I can't imagine a judge would want that, and I would object," he said.

Fellow defense attorney Kerry Tepper of Bradford & Barthel said he agreed that "live hearings will always be needed" for "important hearings wherein you want to be present to argue in person for greater effect," or for settlement negotiations and the execution of settlements.  

Tepper, who is based in Tarzana, said he used Court Call frequently when he did civil work, prior to joining Bradford & Barthel in 2011.

"It worked well for cases that require a long drive, and where the appearance is only brief and not too important, such as taking a matter off calendar or getting a continuance," he recalled.

Tepper said that he didn't mind if his opposing counsel used Court Call, unless the need arose for counsel to execute paperwork for a settlement or stipulation. Then, not having everyone physically present would become a problem.

Sometimes, he said he also had trouble hearing the judge or the other attorneys, because of background noise.

For these reasons, he said he thought Court Call wouldn't be ideal for use at lien conferences, where there is negotiating among multiple lien representatives, and settlement documents that need to get signed.

Tepper said he also thought having everyone be at the board's meeting seems to help facilitate negotiations. He said he suspected negotiations and settlements, which have a tendency to happen at unexpected times in comp, would be less likely to be reached if all the parties aren't stuck in a room together.

Lien claimants' attorney Mona Nemat of Brissman & Nemat in Colton said she also didn't think Court Call would work well for lien hearings, because there are generally so many parties involved.

However, she said she was a fan of the program and had used it extensively when she was still doing civil litigation work.

"Civil uses it all the time," Nemat said, and "it's a convenient, inexpensive way to represent clients."

For example, Nemat said her office is in Riverside County, and when she has to make appearances in Los Angeles or Oxnard, that means her clients have to pay her for five hours of travel time. The $66 fee for Court Call is quite a cost-savings, by comparison, she said.

Plus, there's the bonus that "I'm not wasting half the day sitting in traffic," Nemat added.

Another good thing about Court Call, she opined, is that it "brings a lot of structure" to the courtroom. Attorneys have to call in to Court Call at a designated time, and they need to be ready to present their issues as soon as the call connects, Nemat said.

She said she thought this ensures attorneys are well-prepared for their appearances, and "they're done in 30 to 45 minutes," instead of having to sit around the courtroom, waiting for their cases to get called.

San Diego applicants' attorney John Don said he thought Court Call was actually making it harder on judges to run their courtrooms.

"I think it's a good idea," Don said, but the problem he's noticed that a third party is channeling calls into the courtroom. So the judge "has to know when the Court Call is going to happen and then drop everything to handle it" when it comes to it, he said. Also, while the call is happening, everyone else in the room has to be quiet so the caller can hear the judge.

If three or four calls were to come through in one day, Don said he thought there would be "chaos." He said he's not seeing that happening at the San Diego boards now though.

"I don't think it's being used very often," Don said. His experience, he said, is limited to one occasion where another applicants' attorney used Court Call to make an appearance.

He said he remembered there were "quite a few glitches" in the call, and a lot of documents that had to be faxed back and forth, which slowed things down.

Don said he thought Court Call would work for "easier" proceedings, and it's "a useful took to have in a pinch," but since "things can get hairy fast" in a comp proceeding, he didn't recommend using Court Call as an alternative to being at the board.

Applicants' attorney Alan Gurvey of Rown, Gurvey & Win agreed. He said his firm's belief is that "we should be present at appearances so we get the full impact of the event," no matter what it is.

"Court was meant to be a place where everyone sees each other eye to eye," he opined.

Defense attorney Robyn Park Freiberg of Manning & Kass, Ellrod, Ramirez & Trester said she personally would be "nervous about setting a matter for trial or having my arguments effectively presented to a judge without personally being there," so she felt Court Call should be used "judiciously and not for every appearance."

She said she had used Court Call to make appearances in cases where the sole issue was a dispute between attorneys regarding fees that the defendant has been ordered to hold in trust. 

Freiberg said she doesn't feel the need to be present at these types of hearings, since all that matters to her client is the end result.

But in general, she said, "I think there is an advantage to being face-to-face with your judge," and "there is something to be said about appearing in court." Being in front of a judge, Freiberg said, lends a feeling of gravitas to the proceedings, and it seems to make lawyers feel "more accountable for being prepared and ready to think on your feet."

She said she anticipated video and teleconferencing to become the new norm for comp cases someday, but that day is "far down the road as we are still too old school, with too many of us using antiquated technology to fully embrace the future." 

The "future," as Freiberg sees it, is already the past in Florida. The judges of compensation claims in the Sunshine State have been using video conferencing for hearings for years now.

David Langham, the deputy chief judge of the Florida Office of Judges of Workers' Compensation Claims, said the Division of Administrative Hearings began using video conferencing in the early 2000s. The division built its own network to run the conferencing system in 2007, and all 17 offices have been interconnected since 2008.

Langham said it's now commonplace for the parties to a comp dispute to be in Miami, and present their case to a judge sitting in St. Petersburg, Pensacola or Panama City.

He said he doesn't have an exact count, but "hundreds" of cases have been tried this way.

 Langham said there have been instances where the parties objected to trial-by-video, saying it'd be too confusing because of the number of participants involved, or because they were concerned about the judge's ability to perceive the demeanor of witnesses.

When this happens, Langham said, it's up to the judge assigned to the case to decide whether a video trial would be appropriate.

"I'm not going to tell you everybody loves it," he said, but "I'm a big fan."

Langham said he doesn't worry about missing details by not being physically present at trials, since he's watching on a high-definition, 40-inch television screen, and wielding a remote control that lets him look from person to person, and zoom in to "make them even bigger than in life."

The video magnification works so well, he said, that a lawyer can hold a document up in front of the camera and he can read it.

Langham said that having video trials also gives him the flexibility to switch judges in a matter of minutes, if someone calls in sick or has another trial that runs long.

"This gives us the power and flexibility, in my opinion, to provide a much better, more dynamic, service," he said.

While he said he understood not everyone is eager to try the idea of remote appearances, Langham said it reminds him of the push-back against e-filing when that was first introduced. He laughed about how attorney after attorney told him that it "would never work."

Langham said he sees video conferencing in the same light, and he suggested that attorneys "give it a try," at least once, because "the proof of the pudding is in the eating."

Pennsylvania Workers' Compensation Judge David B. Torrey said he's seen the Florida video set-up, but he still prefers to have the parties come to court.

"I am personally of the view that to assess credibility, and also to get the ambiance of the case, a live hearing where I see the witnesses in the flesh is better," he said. "This not only helps me judge credibility, but makes me be a better judge because I am immersed more in the case."

Torrey said he thought live testimony "lends credibility to the process and transparency as well."  

However, Torrey said other judges in the state have their own preferences for hearing testimony, and generally, most of the judges don't require doctors to come to court.

Testimony from doctors almost always comes by deposition, Torrey said, "mainly because they are simply too busy and we accommodate the practice."

Published on March 4, 2015 by WorkCompCentral, authored by Sherri Okamoto