What a difference a pandemic makes. Two years ago, I wrote an article about Video Teleconference (VTC) hearing procedures at the Defense Office of Hearings and Appeals (DOHA). At that time, DOHA was restrictive in how VTC hearings were conducted. DOHA required professional-grade VTC equipment located primarily at government facilities. They preferred to have a government representative at each location—usually a DOHA Administrative Judge at one location and a Department Counsel (DOHA attorney) at the other—to keep a watchful eye on all participants. The participants were rarely at more than two locations. The Applicant, the Applicant’s witnesses, and the Applicant’s attorney or personal representative (legal practitioner) were almost always at one or the other of these two locations. VTC hearings were not offered as an option to Applicants within 150 miles of a major metropolitan area or military base. In the article, I said applicants shouldn’t expect to participate in a VTC hearing from their kitchen table using Skype® on their notebook computer. All of that has changed.
The COVID-19 pandemic caused all courts to establish social distancing protocols and install clear plastic barriers to reduce droplet transmission. In Virginia, it took some courts over six months to gain approval of the changes they had made. DOHA has personnel assigned to its main hearing office in Arlington, VA and five other locations across the country. But a large percentage of their in-person hearings occur at different locations and require an Administrative Judge and a Department Counsel to travel there. Those hearings take place in facilities owned or controlled by other federal agencies in large cities and military bases (e.g., a tax court in a federal building in San Francisco). If those agencies were slow in implementing the needed changes, it would have pressured DOHA to expand its use of VTC hearings. There was probably also a reluctance to require their judges and attorneys to travel by airplane, dine in restaurants, and use other public facilities. The increased need at DOHA to conduct hearings by VTC probably resulted in the relaxation of VTC hearing procedures. The use of VTC also allowed DOHA to significantly reduce their travel expenses.
What It’s Really Like During a VTC Hearing
I recently represented a client at a DOHA VTC hearing. Eight of the nine participants, plus the court reporter, were at different locations. The hearing was conducted using Microsoft Teams®. The Applicant and three of his witness were within 100 miles of Chicago. Another witness was in California. One of the witnesses may have been using a notebook computer at their kitchen table. I was at my home office in Leesburg, VA. I don’t know where the court reporter was. I assume the Administrative Judge and the two Department Counsel were at the DOHA facility in Arlington, VA, but the two Department Counsel were in one room and the Judge was in another room.
The Administrative Judge did not sequester any witnesses, which he could have easily done by keeping them in the “waiting room” until it was their turn to give testimony. Well before the hearing, I had prepared the witnesses individually. Each knew what I would ask, and I knew how they would answer my questions. I also gave the witnesses a list of “do’s and don’ts.” One of the instructions on the list was not to look at any written material while testifying. The Judge’s permission would have to be obtained before they could view anything in writing. Nevertheless, one of the witnesses repeatedly glanced down while testifying, and the Judge astutely noticed it. The Judge interrupted my questioning and asked the witness what he was looking at. The witness said he had a paper with some notes of dates and events to refresh his memory. The Judge admonished him against using the notes and had him turn the paper face down on his table.
When you’re trying to focus on one witness at a time and intermittently monitor the reactions of the Judge, the slight movements of eight different people in small squares on the screen in front of you can be a little distracting. It’s much easier to remain focused in a hearing room, where only the Judge and one witness are in your direct line of view.
Occasionally, there’s a need for your legal practitioner to speak with you privately during the hearing. At an in-person hearing, your practitioner would ask the Judge for a minute to confer with you and then either turn off their microphone or cover it with their hand. If necessary, a brief recess can be requested, and the two of you can step outside the hearing room. At a VTC hearing, a recess can also be requested. You and your practitioner can mute your computer microphones, turn on your cell phones, and confer by cell phone.
VTC hearings represent significant cost savings to many Applicants. Plus, there’s the flexibility of having witnesses in other parts of the country testify on the Applicant’s behalf without traveling to a hearing. There are areas in the U.S. where it may not be possible to find a qualified, experienced legal practitioner to represent you at a hearing. With few exceptions, they seem to be in the greater Washington, DC area. For many Applicants, an in-person hearing means either they or their legal practitioner will have non-local travel. Suppose the person who prepared a detailed response to your Statement of Reasons (SOR) is also representing you at a hearing. In that case, that person’s non-local travel time and expenses can triple the total cost of representation. Alternatively, you can travel to the city where your practitioner is located. It will be less expensive, but it may be too distant for your witnesses to testify at the hearing. Obviously, VTC hearings are more economical for both the Applicant and for DOHA because they eliminate travel time and expenses for everyone.
DOHA has not posted policy documents or instructions regarding VTC hearings on its website. The DOHA “Prehearing Guidance” continues to say, “Hearings may be conducted in a federal, state, county, or local hearing room, conference room, courtroom, or video teleconference center.” Other than that, no mention is made of VTC hearings. If the January 14, 2021 memorandum from the Under Secretary of Defense for Intelligence and Security (USD-I&S) is implemented later this year as intended, the number of DOHA hearings could increase significantly, and the use of VTC hearings will probably increase also.
The future of VTC hearings at DOHA hasn’t been made public. Still, reason and logic suggest that the less restrictive use of VTC by DOHA to facilitate hearings during the COVID-19 pandemic will probably continue and increase.
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