More Liberal Telephonic Appearance Rules Adopted

The advent of telephonic court appearances has dramatically changed civil litigation practice. Routine appearances that used to require hours of freeway driving can now be accomplished without the lawyer having to leave his or her office or home. The lawyer can even take care of other work while waiting for his or her case to be called. The savings in time and money is immeasurable, and little or nothing has been lost by not forcing lawyers to appear in person on routine matters.

California Rule of Court 3.670, which governs telephonic appearances, has now been amended (effective January 1, 2014) to allow attorneys to appear by telephone in a somewhat wider variety of situations. The key changes are:

  1. The rule has been clarified to state that telephonic appearances are allowed in all matters, unless the rule expressly states otherwise or the judge orders a personal appearance for good cause.
  2. Attorneys filing ex parte applications are now allowed to appear by telephone, provided that they have filed their moving papers (including a proposed order) by 10 a.m., two court days before the hearing. Attorneys opposing ex partes are now allowed to appear by telephone under all circumstances.

The revision regarding ex parte appearances makes a great deal of sense. Ex partes, because they typically arise on very short notice, can wreak havoc with a lawyer’s schedule. Allowing telephonic appearances goes a long way towards alleviating that disruption. The most common ex parte application is to continue a trial date. In the past, even if an attorney did not oppose another party’s request for a continuance, he would feel compelled to show up at the ex parte, in order to make sure that the new trial date did not conflict with any other trials, vacations, etc. on his schedule. That can just as easily be accomplished via telephone.

The rules continue to require personal appearances under the following circumstances:

  1. Proceedings (including trials of course) at which witnesses are expected to testify.
  2. Hearings on temporary restraining orders.
  3. Settlement conferences.
  4. Trial management conferences.
  5. Hearings on motions in limine.
  6. Hearings on petitions to confirm the sale of property under the Probate Code.

In addition, personal appearances are still required for persons who have been ordered to appear to show cause why sanctions should not be imposed for violation of a court order or a rule. But even under the circumstances set forth above, the court has discretion to allow telephonic appearances if deemed appropriate.

The court also has discretion to require counsel to appear in person on any matter, but subsection (f)(2) of Rule 3.670 makes it clear that this discretion has to be exercised on a “hearing-by-hearing basis.” In other words, a judge cannot do an end run around Rule 3.670 by adopting a standing rule requiring personal appearances in all matters or, for example, all case management conferences.

Of course, an attorney still has to make a strategic decision whether she might represent her client more effectively by making a personal appearance, even if a telephonic appearance is permitted. Generally, attorneys should personally appear at hearings involving important substantive matters, such as summary judgment motions. The simple act of appearing in court sends a message to the judge that the attorney (and her client) are taking the matter seriously, and that message can affect the outcome.

Fortunately, the revised Rule 3.670 allows the attorney, not the judge, to decide in most situations whether a personal appearance is truly necessary. Oftentimes, the savings in time and money associated with a telephonic appearance, particularly in a routine matter, far outweighs any theoretical advantage an attorney might gain by negotiating freeway traffic and courthouse parking for an opportunity to spend two minutes in front of a judge who is, in reality, simply rushing to get through his calendar.

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