The New Normal Arrives Permanently in Minnesota

Minnesota’s judicial system is not going back to the way cases were decided prior to the COVID-19 pandemic. 

Starting June 6, litigators in Minnesota’s courts will have the certainty of knowing in advance which case matters will be held remotely and which will be held in person. In the vast majority of cases, the format will be remote. For civil matters, only major civil litigation is entitled to the presumption of in-person jury trials and bench trials. 

Under the state’s new oneCourtMN Hearings Initiative Policy (PDF), every type of case matter is assigned a presumptive format — either “in person” or “remote” — that cannot be changed unless the trial court determines that exceptional circumstances exist to make the change.

Minnesota’s decision to establish remote hearings as the default format for so much of its judicial business comes at a time when courts across the country are considering permanent changes in the way judicial business is conducted by building on what worked, and what didn’t, during the COVID-19 pandemic.

Minnesota’s new rules on remote proceedings could be a model for courts across the country.

The new Minnesota remote hearings policy covers divorce and child custody proceedings, domestic abuse, evictions, probate, juvenile delinquency, guardianship, and all types of civil litigation. 

Only Trials Are Presumptively In Person

For cases designated as “minor civil,” every interaction with the court will be presumptively remote. This category includes small claims (less than $15,000 at stake), implied consent cases (drunk or impaired driving), and evictions. No proceeding in the “minor civil” category will be presumptively handled as an “in-person” matter.

For cases designated as “major civil,” only bench trials, jury trials, and contempt hearings will be presumptively “in-person” proceedings. This means that the following matters are not entitled to an “in-person” hearing unless one of the parties can demonstrate that exceptional circumstances warrant a traditional courtroom disposition:

• Arbitrations
• Default hearings
• Miscellaneous hearings other than trials
• Pretrial conferences
• Motions
• Scheduling Conferences
• Settlement Conferences
• Requests for temporary restraining orders

How difficult will it be for parties to demonstrate that “exceptional circumstances” require switching an in-person hearing to a remote hearing, or vice versa? Very difficult, at first glance.

According to Minnesota Supreme Court Chief Justice Lorie S. Gildea’s Order Governing the Continuing Operations of the Minnesota Judicial Branch (PDF), trial courts may depart from the presumptive format “only if the judge determines that exceptional circumstances exist in light of the particular needs of the case or the parties, or concerns of economy or efficiency.”

The order makes clear that stipulations among the parties in favor of a particular hearing format will not alone satisfy the exceptional circumstances requirement. To the extent that other court rules prohibit holding judicial proceedings remotely or limit the use of technology to conduct court proceedings, those rules were suspended by the state high court.

In cases in which a party desires an in-person hearing in a matter that is presumptively designated for a remote proceeding, that party will have to demonstrate, to the trial court’s satisfaction, that exceptional circumstances for the change exist. The trial court may consider the following factors in reaching its decision:

• all parties, including the court, agree that the hearing should be conducted in person
• one party lacks access to technology allowing remote participation (and cannot be expected to gain access to such technology prior to the hearing)
• the complexity of the proceeding and its importance to the case
• the number of parties is too large to easily keep track of them on a computer screen
• whether appearing remotely would allow for effective examination of the witness and maintain the solemnity and integrity of the proceedings
• whether a remote hearing would cause undue surprise or prejudice
• any other factors the trial court believes are relevant

In cases in which a party would like a remote hearing instead of a presumptively in-person hearing, the factors leading to a finding of exceptional circumstances are similar but cognizant of the time and cost savings that remote hearings can provide. For example, when deciding on a request for a remote hearing, trial courts may consider:

• whether holding the hearing in person would cause a hearing participant to reasonably fear for their safety
• the cost and time savings to any party
• the reasonableness of the burdens associated with travel to the hearing location
• weather conditions that might impact travel to the hearing location
• unavoidable scheduling conflicts that could arise if the hearing were held in person.

These orders reflect the state high court’s resolve to make remote hearings a permanent role in the adjudication of cases that come before Minnesota’s courts. In announcing the oneCourtMN Hearings Initiative Policy, Chief Justice Gildea also tasked the state’s several rules advisory committees to review — and make recommendations for revision — all existing court rules to ensure that they permit wide use of remote technologies.

The same committees were also asked to consider whether changes are needed to existing rules regarding electronic service of process, electronic case filing, and live-streaming of proceedings “in contemplation of the long-term use of remote hearings.”