Vt. R. Prob. P. 43.1
The court has discretion to conduct in person or hybrid proceedings based on a consideration of any relevant factors in subdivision (g).
Vt. R. Prob. P. 43.1
Reporter's Notes-2023 Amendment
Rule 43.1 was first adopted May 1, 2019, effective August 5, 2019, to provide a uniform process for participation by audio and video conference.
The COVID-19 pandemic reached Vermont less than a year later. The Governor of Vermont declared a state of emergency on March 13, 2020, and by Executive Order, the Governor imposed limits on gatherings of persons to reduce the health risk to the public and limit the spread of the infection. The Vermont Supreme Court issued Administrative Order No. 49 on March 16, 2020, and declared a judicial emergency. A.O. 49 temporarily modified court rules and operations to meet the Court's constitutional responsibilities while protecting the health and safety of court personnel, court users, and the public at large. The Court subsequently amended A.O. 49 numerous times to respond to the evolving course of the pandemic.
The initial and amended versions of A.O. 49 superseded certain provisions of Rule 43.1, allowing more widespread use of remote and hybrid proceedings. At the same time, the Judiciary obtained the necessary software and technical equipment to support these proceedings. The current amendments incorporate lessons learned regarding remote and hybrid proceedings based on the experience of the bar, judges, court staff, and the public.
Rule 43.1(a) provides a default of remote proceedings with hybrid and in-person proceedings permissible with court permission. In contrast, simultaneously amended V.R.C.P. 43.1 contains a default of in-person participation with the possibility of remote or hybrid proceedings at the court's initiation or a party's request. Under the civil rule, there must be a finding of good cause based on the enumerated factors to conduct a remote or hybrid evidentiary proceeding. The difference in the default process for the probate division stems from the difference in the type and conduct of most probate proceedings. Most probate proceedings are conducted with relaxed evidentiary rules. Contested minor guardianship proceedings are one of the few kinds of hearings that incorporate the rules of evidence. See 14 V.S.A. § 2627(b). Probate proceedings also often involve self-represented parties and individuals from a wide geographic area, including outside Vermont. The experience during the pandemic demonstrated that remote participation provides a good balance between the cost and convenience for the participants and the overall effectiveness of the proceeding which is consistent with the scope of the Rules, set out in V.R.P.P. 1.
Rule 43.1(b) contains new definitions for hybrid and remote proceedings. In remote proceedings, all participants participate through audio or video conference. In a hybrid proceeding, participants may be physically in the courtroom or participating remotely by video or audio conference. When a hearing notice indicates that a proceeding will be hybrid, participants make their own decision about how to participate and are not required to notice the court or other parties in advance of how they will participate, absent an order of the court that may provide certain participants to appear in person. The definitions of "hearing" and nonevidentiary hearing" in former (b)(2) and (3) are deleted since the rule now treats all proceedings in the same manner. The definition of "remote location," in former (b)(4), which required technical requirements to be met to preside remotely, is deleted as unnecessary given the general requirement to have technical standards under subdivision (i). Conduct and attire at hybrid and remote hearings should be no different than what would be expected at in person hearings.
Under 43.1(c)(1), the court has discretion to issue standing orders or case-specific orders for hybrid or in-person participation based on a consideration of any relevant factors provided in (g).
The parties may also move or stipulate to hybrid or in-person participation under (c)(2). In assessing whether to grant or deny a motion or stipulation, the court is guided by a consideration of the factors in subdivision (g). Because a hybrid or in-person hearing requires the availability of a courtroom and additional court staff, when a motion is granted, the court may need to reschedule the proceeding.
New subdivision (c) replaces former paragraphs (c)(1), (2), and (3) and (d)(2), and (3), which detailed the process for requesting and allowing participation through audio or video conference. As amended, the rule does not differentiate the process for audio or video participation, although, as explained below, there may be different relevant factors that apply if a participant appears by audio only.
Rule 43.1(d) replaces former (c)(4) and (d)(1) and allows the judge to preside remotely. The judge must provide the parties with notice reasonably in advance of the hearing if the judge intends to preside remotely for an in-person proceeding. Presiding remotely became much more common during the pandemic and practice indicates that judges can effectively run hearings without being present in the courtroom. Often judges and court staff do not know that a judge will preside remotely until close to the hearing date. The rule seeks to balance the need to provide notice to the parties with the flexibility required for judges and staff.
Rule 43.1(e) addresses the required notice to the parties in advance of the hearing. The notice must specify whether the proceeding is in person, remote, or hybrid and describe the process for requesting an alternate means of participation.
Subdivision (f) allows exceptions to the notice and timing requirements of the rule. It replaces former (c)(5), which was entitled "Emergencies" and allowed waiver of some of the rule's time requirements based on "unanticipated and unintended events." The subdivision is now entitled "Exception," to signify that not all circumstances warranting an exception may rise to the emergency level. This provision allows the court flexibility to respond to last-minute events such as illness, exposure to illness, or childcare needs.
Rule 43.1(g) incorporates the factors from former (c)(6) and (d)(3) and (4) for the court to consider in evaluating whether to have hybrid or in-person proceedings. The factors are the same as that provided in V.R.C.P. 43.1(h). See the Reporter's Notes to that rule for an explanation of the added factors.
New 43.1(h) addresses the conduct of the proceedings and contains some provisions from former (d)(5). Under (h)(1), the court may impose conditions to ensure the fairness of the proceeding, ensure reliability of the evidence, or to protect public health. For example, to ensure reliability, in a remote proceeding, the court may require that specified persons or no persons be present with a remote witness or that a witness affirm under oath that the witness is receiving no verbal or nonverbal communications from any persons within or outside of the room. It is essential to the integrity of the proceedings that behavior that would be unacceptable in open court, with all participants present, does not occur during remote or hybrid proceedings. Conditions may also be imposed to allow parties, witnesses, judges, and counsel to be able to participate without jeopardizing their own health or the health of persons who may be dependent on them. Under (h)(2), the court may also suspend, modify, or reschedule the proceeding if the court determines that the personal appearance of some or all participants is required or some other change in the manner of the proceeding is necessary. Former (d)(5)(C), which allowed the court to apportion the expense of an audio conference between the parties is removed. Insofar as the judiciary has the necessary equipment to conduct remote proceedings, no cost to the parties will ordinarily be incurred.
Finally, former 43.1(e), regarding technical standards, is relabeled (i).
Reporter's Notes
V. R.P.P. 43.1 is added to adapt the procedure of new V.R.C.P. 43.1, covering video and audio participation and testimony, to the circumstances of Probate Court proceedings. See generally Reporter's Notes to V.R.C.P. 43.1.
Definitions of "hearing" and "nonevidentiary hearing" in V.R.P.P. 43.1(b)(2) and (3) replace "trial" and "nonevidentiary
proceeding" found in V.R.C.P. 43.1(c). These changes reflect the fact that evidentiary probate proceedings are generally denominated "hearings" and most are relatively infomial. The appropriate distinction is between the relatively few hearings that require application of the Vermont Rules of Evidence and those hearings in which the lesser standard of V.R.P.P. 43(a) is applied. Accordingly, the distinction in V.R.C.P. 43.1 between "trial" or "evidentiary proceeding" on the one hand and "other proceedings" or "nonevidentiary proceedings" on the other hand is not adopted.
Because probate hearings generally do not involve or require as much lead time as proceedings in other divisions, the times for filing motions and court orders, and objections to them in V.R.P.P. 43.1(c)(2)(A) and (c)(3) are reduced from those provided in V.R.C.P. 43.1(c)(2)(A) and (c)(3). Other changes reflect the different structure and terminology of the probate courts. See, e.g., V.R.P.P. 43.1(c)(1)(B).