A Court Case in the Time of COVID: The Judge Forgot to Swear in the Witnesses

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Original story posted on: May 15, 2020

Since COVID-19, courts across the country have been closed. Judges have been relaxing at home.

As an attorney, I have not been able to relax. No sunbathing for me. Work has increased since COVID-19 (me being a healthcare attorney). I never thought of myself as an essential worker. I still don’t think that I am essential.

On Friday, May 8, my legal team had to appear in court.

“How in the world are we going to do this?” I thought.

My law partner lives in Philadelphia. Our client lives in Charlotte, N.C. I live on a horse farm in Apex, N.C. Who knows where the judge lives, or opposing counsel or their witnesses? How were we going to question a witness? Or exchange documents?

Despite COVID-19, we had to have court, so I needed to buck up, stop whining, and figure it out. “Pull up your bootstraps, girl,” I thought.

First, we practiced on Microsoft Teams. Multiple times. It is not a user-friendly interface. This Microsoft Team was the judge’s choice, not mine. I had never heard of it. It turns out that it does have some cool features. For example, my paralegal had 100-percent control of the documents. If we needed a document up on the screen, then he made it pop up, at my direction. If I wanted “control” of the document, I simply placed my mouse cursor over it. But then my paralegal did not have control. In other words, two people cannot fight over a document on this new “TV Court.”

The judge forgot to swear in the witnesses. That was the first mess-up “on the record.” I didn’t want to call her out in front of people, so I went with it.

Then we had to discuss HIPAA, because this was a healthcare provider asking for immediate relief because of COVID-19. We were sharing personal health information (PHI) over all of our computers and in space. We asked the judge to seal the record before we even got started. All of a sudden, our court case made us all “essentials.” Besides my client, the healthcare provider, no one else involved in this court case was an “essential.” We were all on the computer trying to get this provider back to work during COVID-19. That is what made us essentials!

Interestingly, we had 10 people on Microsoft Team. The person that I kept forgetting was there was Mr. Carr (because Mr. Carr works at the courthouse and I have never seen him).

You cannot see all 10 people on the Team app. We discovered that whomever spoke, their face would pop up on the screen. I could only see three people at a time on the screen. Automatically, the app chose the three people to be visible based on who had spoken most recently. We were able to hold this hearing because of the mysterious Mr. Carr.

The witnesses stayed on the application the whole time. In real life, witnesses listen to others’ testimony all the time, but with this, you had to remember that everyone could hear everything. You can elect to not video-record yourself and mute yourself. When I asked my client to step away and have a private conversation, my paralegal, my partner, and the client would log off the link and log back on an 8 a.m. link that we used to practice earlier that day. That was our private chat room.

The judge wore no robe. She looked like she was sitting on the back porch of her house. Birds were whistling in the background. It was a pretty day, and there was a bright blue sky…wherever she was. No one wore suits except for me. I wore a nice suit. I wore no shoes, but a nice suit. Everyone one else wore jeans and a shirt.

I didn’t have to drive to the courthouse and find parking. I didn’t even have to wear high heels and walk around in them all day. I didn’t have to tell my paralegal to carry all 1,500 pages of exhibits to the courthouse, or bring him Advil for when he complains that his job is making his back ache.

Whenever I wanted to get a refill of sweet tea or go to the bathroom, I did so quietly. I turned off my video and muted myself and carried my laptop to the bathroom.

All in all, it went as smoothly as one could hope in such an awkward platform.

Oh, and happily, we won the injunction, and now a home healthcare provider can go back to work during COVID-19. All of her aides have PPE. All of her aides want to go to work to earn money. They are willing to take the risk. My client is getting back-paid for all her services rendered prior to the injunction. She hadn’t been getting paid for months.

I may be among the first civil attorneys to go to court in the time of COVID-19. If I’m honest, I kind of liked it better. I can go to the bathroom whenever I need to, as long as I turn off my audio.

Being on RACmonitor for so long definitely helped me prepare for my first remote lawsuit. My next lawsuit will be in New York City, where adult day care centers are not getting properly reimbursed.

Programming Note:

 

Healthcare attorney is a permanent panelist on Monitor Monday and you can hear her reporting every Monday, 10-10:30 a.m. EST.

Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards.  She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining.  Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Practus, LLP and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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