Two months in to the Tax Court’s new remote practice procedures (blogged by Keith here), there have been by my rough count about 28 calendar calls in 19 cities. Recently I received notices setting cases for trial by Zoom in February, indicating that remote trial sessions will continue for the winter session. This post will describe the new remote calendar call experience and provide some practitioner tips. We welcome others to share their experiences in the comments.
Accessibility of Remote Proceedings
A recent question from the ABA Tax Section’s LITC listserv is a good place to start:
Our clinic has helped and continues to help a large number of individuals who have no internet access apply for the EIP using the non-filer portal. We are acutely aware of the staggering number of people especially in remote areas who simply have no internet. As we head into our first remote US Tax Court session, I am wondering what people do who either have no internet access or insufficient equipment to access the internet.
What has been the protocol to help those who lack any meaningful access to court because they have no internet access? Is there a protocol that clinics have used? Is there a protocol that US Tax Court has in place…?
The Tax Court has been sensitive to this issue, but petitioners may not realize this if they only look at their Notice of Trial. The new Standing Pretrial Order says “If you have any concerns about your ability to fully participate in a remote Court proceeding, you should immediately let the Judge know.”
What happens if you let the judge know? It depends somewhat on the judge. Many judges will hold an informal conference call with the parties to discuss technology issues and how the case should go forward. Other judges may issue an order asking for the parties’ written responses. Depending on the circumstances, the case could be continued, or tried by phone, or submitted for decision without trial under rule 122. The court will listen to both parties’ concerns before deciding.
This system does place the onus on the petitioner to reach out to the Court, or at least to Chief Counsel, with any concerns. LITCs can help get the word out that it’s ok for petitioners to ask for accommodations.
What happens if the petitioner does not contact the court ahead of time with technology concerns? Some judges schedule conference calls as a matter of course if a case approaching trial remains unresolved and the petitioner is unrepresented. But some do not, and so the best practice is for petitioners to proactively share their concerns with the court and IRS counsel.
Calendar Call Administrators; Consultation Mechanics
Procedurally, a new feature of remote calendar call is the designation of LITC (or pro bono) calendar call administrators (also called supervisors). Each calendar call now has a designated administrator from the clinic or pro bono contingent as well as from IRS Chief Counsel. The Court shares remote proceeding instructions with the LITCs, which largely summarize the procedures shown in the calendar call videos on the Court’s website and expand on the role of the LITC administrator/supervisor.
The administrators play a “traffic cop” role at the calendar call, remaining in the main courtroom with their videos on to greet new arrivals. If a petitioner wishes to speak to a volunteer, the LITC administrator figures out which volunteers are available, and can escort the petitioner into a breakout room for the meeting. Likewise, if a petitioner wishes to speak with Chief Counsel, the Chief Counsel administrator figures out which attorney is assigned to the case, and can escort the petitioner into a breakout room with that attorney.
It is important that the clinicians and volunteers communicate ahead of time so that the clinic administrator knows about any eligibility or capacity limits. These should include any geographic limitations. At the Philadelphia calendar call on October 5, Judge Leyden had included several cases from her spring 2020 Detroit calendar which had been cancelled. One of those petitioners wanted to speak to a volunteer attorney, and none of the volunteers were from Detroit. Generally speaking, academic clinics do not have strict geographic limitations, whereas nonprofit legal services organizations may have requirements imposed by their grant funding.
The court’s videos and instructions state that volunteers will wait in a breakout room for any petitioners that wish to consult. Some judges have a different practice, however, one that I hope will catch on. At some sessions, students and volunteers have been permitted to remain in the main courtroom instead of waiting in a breakout room. Everyone except the two administrators and the clerk were instructed to keep their cameras off and microphones muted. This worked very well in Philadelphia. I appreciated that it allowed students to observe the interactions between the clerk and administrators and each petitioner who arrived. This also meant that volunteers did not have to keep a separate device connected to the public audio stream, in order to hear what might be going on in the courtroom.
Calendar Call Observations: Everything’s Up to Date in Kansas City
William Schmidt shared this account of the October 5 calendar call in Kansas City:
As the October 5 virtual calendar call drew closer for Tax Court to hold session in Kansas City, I reached out to Judge Paris’s clerk for a practice session regarding Zoomgov. It turned out to be useful for us to chat about expectations regarding petitioners that were good candidates for advice from the 3 local Low Income Taxpayer Clinics (LITCs). There were 4 cases that she had identified as ones potentially needing assistance from the LITCs.
To facilitate confidential discussions between such petitioners and LITC personnel, the Tax Court has virtual breakout rooms available. The clerk did a practice session for me regarding the breakout rooms to show me what it would be like to be placed and removed from such a room during the live session.
When October 5 arrived, the 3 clinics met with the clerk at 9 a.m. This was to facilitate an extra hour for the unrepresented petitioners to talk to the clinicians before the calendar call started at 10 a.m. Central time. However, no petitioners showed up and we made small talk such as reviewing what to expect from the cases at calendar call.
Once the calendar call started, the petitioners began to appear. I think there was a variety of people appearing electronically by using computer cameras, cell phones, or iPads. There were some delays as the clerk had to identify everyone. She would label the person on the Zoomgov call so you could identify the person’s role (petitioner, LITC, respondent’s counsel, etc.). There were some pauses at that point and later for appearances on the cases as the petitioners had to state their names over the audio. A couple petitioners with iPads had to phone in separately to make appearances. Overall, the technology made things a bit awkward but they eventually worked out.
One unrepresented person (the intervenor in an innocent spouse case) eventually asked for assistance. Since that individual was a Missouri resident, the director at the University of Missouri-Kansas City LITC met with him in a breakout room and eventually entered an appearance on the case.
There were 6 cases at calendar call. One was dismissed for lack of prosecution, one was settled (IRS Counsel read the settlement into the record and the parties verbally agreed to the settlement), and the other four cases were continued with joint status reports due in 30 days (innocent spouse, accuracy-related penalties, and substantiation of contract labor and advertising expenses were some of the issues mentioned).
There was a trial scheduled for October 6 and 7, but the parties filed a stipulation of settled issues and a joint status report. The trial was stricken from the remote trial session and continued. The parties are to file a joint status report or decision by November 6.
Communication, Privacy, and Document Exchange
William provided this tip for communication:
it is best for LITCs or other pro bono attorneys meeting with an unrepresented petitioner in a breakout room should get the phone number of the petitioner in case there is a technical issue that causes someone to be kicked out of the Zoom session.
This is good advice. The Clerk in Philadelphia warned all participants that some people have been kicked out of the session when they’ve attempted to move between the main room and a breakout room.
Privacy has also been raised as a concern for remote proceedings, given the public audio stream on YouTube. The Clerk at the Philadelphia calendar noted that he had the power to mute the public audio stream, and he invited folks to let him know if they needed to share confidential information as part of their case presentation. This seems like a reasonable approach to the problem.
Document review and exchange during calendar call is another concern that has been raised. One of our most useful functions at a calendar call is to quickly review documents from both sides and give an assessment to the petitioner. To state the obvious, this is more difficult over Zoom. At the Philadelphia calendar call on October 5, the chat function in Zoom was disabled, so we could not use that to communicate “on the side” during the calendar call. This is an understandable move by the Court, but it does make document exchange between Chief Counsel and a volunteer more difficult. In the virtual settlement day meetings I attended, the chat function was very useful for sharing documents. At least on Zoomgov, sharing documents through the chat seems much more secure than email, and easier for IRS Chief Counsel attorneys.
Obtaining documents from a petitioner can be much more difficult than obtaining them from IRS Counsel. At the Philadelphia calendar call, one case where the petitioner still needed to provide documents was continued, and I expect this is not unusual. Judge Leyden commended after the session that the hardest part about remote trial sessions is the exchange of documents and submission of last-minute exhibits. Even if the trial is scheduled for several days after the calendar call, it is not easy in many cases for petitioners to provide legible copies of their documents. I have had limited success asking clients to send photographs of their documents – at least half the time they arrive blurry or cropped, and are not usable. Volunteers and clinicians should be prepared to brainstorm creative ways to obtain documents quickly, or to counsel petitioner how to make a reasonable request for additional time. Many judges will continue a case but retain jurisdiction in order to set status report deadlines and keep the case moving forward. This was Judge Leyden’s approach on Oct. 5, and is consistent with how many judges are taking a more active role in their docket this fall, setting frequent status report deadlines even in cases that are not set for trial.
Conclusion
The Tax Court is keeping its docket moving while attempting to ensure that both sides have the opportunity to put on their best case. This is not an easy task. Reaching unrepresented petitioners continues to be a challenge. Both the Kansas City and the Philadelphia calendar calls had several cases dismissed for lack of prosecution. It does not appear to me that more cases were dismissed than last fall, rather it seems to be a continuation of the existing problem.
The Court welcomes feedback on its remote operations. From the Zoomgov Proceedings page:
Recently had a Zoomgov proceeding before the Tax Court? Please share your thoughts on the experience by completing the Zoomgov Proceeding Feedback form.
I encourage readers to submit their comments below and to the Court as well.