Articles

Client Alert: The Supreme Court of Virginia Amends Rules on Remote Witnesses and Written Statements of Fact for Appeal

On January 15, 2025, the Supreme Court of Virginia announced several amendments to its Rules, which govern proceedings in Virginia court. Parties to civil cases should pay careful attention to two of those revisions, which will become effective on March 17, 2025.
 
Rule 1:27 – Enabling Remote Testimony in Civil Cases
 
In apparent response to the increased demand for remote testimony during the COVID-19 pandemic, the Supreme Court of Court has overhauled Rule 1:27. Of the many changes made, three are worth highlighting.
 
More Time to Submit Requests. Under the old Rule, any party seeking leave to present live remote witness testimony had to file its motion “at least 60 days in advance of the trial or hearing,” with objections due “in writing 10 days after service of such motion.” This long notice period blocked remote testimony requests based on concerns arising nearer the trial or hearing date or only at the tale end of discovery.
 
The revised Rule permits parties to submit their motions as little as “15 days in advance of the trial or hearing,” with objections due “in writing 5 days after service of such motion.” This revision more closely aligns that deadline with the requirement under Rule 1:18B (the Uniform Pretrial Scheduling Order) to request witness subpoenas sufficiently far in advance that they “may be served at least 10 days before trial.”
 
More Deference to Trial Judges. The old Rule imposed nearly a dozen non-exhaustive, practical factors for courts to consider before allowing parties to present remote testimony. These included things like: (1) what procedures were available for the handling of exhibits; (2) mechanisms for making and ruling on objections; (3) procedures for sidebar conferences between counsel and the court; (4) mechanisms for the witness to view counsel, the parties, the jury, and the judge; (5) practical issues, such as the size, number and location of video display screens at the remote location and in the courtroom or facility where the trial or hearing will take place; and many others. The mere volume of considerations surely discouraged many requests and influenced courts to deny them when made.
 
The new Rule omits these considerations altogether, suggesting the Supreme Court of Virginia believes it best to entrust these considerations to the discretion of Circuit Court Judges.
 
No More Burdensome Showings Required. The old Rule required parties seeking leave to present remote testimony to make a showing, putting a thumb on the scale against remote testimony. Previously, to present remote testimony from non-party lay witnesses, the movant had to establish “good cause.” To present party and expert witnesses, movants had to show even more: that there were “exceptional circumstances . . . in the interests of justice” warranting the use of remote testimony.  And courts were required to pay “due regard for the importance of presenting testimony through witnesses physically present in the courtroom” before allowing it.
 
 The new Rule removes these showings, smoothing the way for the proffering of testimony through remote witnesses.
 
Rules 5:11 & 5A:8 – Hearings Required for Written Statements of Facts on Appeal
 
Appellants must file some record for an appellate court to review a lower court’s decision. Otherwise, the court will (nearly always) affirm because the decision below is presumptively right or it’s not clear that the grounds for appeal were timely raised.
 
Usually, that record includes any pleadings and orders, along with transcripts of hearings on those pleadings that produced those orders. While retaining a court reporter and ordering a transcript is the better practice, sometimes hearings happen without one. In those situations, the Rules allow appellants to make a written statement of facts, testimony, and other incidents of the case[1] part of the record instead.
 
Amended Rules 5:11 and 5A:8 have added steps for those seeking to do so before the Supreme Court of Virginia (on direct appeal) and the Virginia Court of Appeals (on all other appeals).
 
Under the revised Rules, appellants now must file both “a copy of the [proposed] statement” and “a notice that the statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after the filing date.” The Rules also now expressly require the filing party to “set or request a hearing [before the trial court] within” the same window.
 
Now, if any party objects to the “written statement on the ground that it is erroneous or incomplete,” the clerk—rather than the objecting party—“must give the trial judge prompt notice of the filing of such objections.”[2] After receiving that notice, “the trial judge must set a hearing with notice to all parties” within 10 days of filing the objections “unless a hearing has already been scheduled.” This change ensures that any statement of facts receives judicial attention and approval in a timely manner, while memories are fresh, facilitating the maturation of appeals and their resolution on the merits.
 
Parties must be mindful of building an appellate record during the course of circuit court proceedings, including through the use of court reporters to transcribe hearings where prejudicial rulings may be made. However, where no transcript exists, parties should be careful to strictly comply with the Rules’ new notice and hearing requirements. Non-compliance may bar winning arguments on appeal.
 
For guidance on any State or Federal civil matter, please contact tdistanislao@whitefordlaw.com or mbrady@whitefordlaw.com.