Plan to post TN appeals court proceedings online raises concern from judges, family lawyers

12:23 PM, Jan 23, 2013   |    comments
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A recent Tennessee Supreme Court rule change that will make oral arguments from all of the state's appeals courts available online has delivered a shock to some appeals court judges and family law attorneys.

Under current rules, oral arguments from the Court of Appeals, the Court of Criminal Appeals and the Supreme Court are available by request and for a nominal fee -- usually about $20.

But in a little-noticed policy change in the name of "transparency and openness of the courts" expected to take effect this spring, digital recordings of all oral arguments in appeals courts will be available online at no cost.

The action has led some, including Appeals Court Judge Frank Clement, to voice concern that it could complicate the lives of children whose parents are going through messy divorces, not to mention "cast a dark cloud" over the parents themselves, according to a letter Clement recently wrote to the high court.

"I'm very concerned about Internet bullying, harassing and abuse," Clement said in a telephone interview. "This is not about the courts keeping secrets. It's about preventing children from being abused and bullied."

Michele Wojciechowski, a Tennessee Supreme Court spokeswoman, said giving the public open access to the courts is important. That said, she noted that the court is now devising a way to "mitigate possible abuse." The court will catalog complaints over the program's one-year trial period.

The majority of states allow appellate courts to make audio -- even video -- recordings of oral arguments available on the Web, according to Wojciechowski.

Nonetheless, many family lawyers are especially critical of the new rule, which they say could create a cascade of unintended consequences.

"If you have a sneaky or vindictive teenager, they'll figure out how to get this stuff online," said attorney Karla Hewitt. "But adults are probably more likely to do it. You can have a nosy neighbor who thinks something is salacious and puts it on YouTube. Anyone can disseminate this information in an unflattering way."

That's nonsense, says Frank Gibson, policy director for the Tennessee Press Association. Any citizen could sit in on the oral arguments, or request a copy of them in person, he said. Wanting to limit access "does not sound like a rational argument."

In Clement's letter to the court, he said the policy, which was never publicly debated, could have a chilling effect on the way the court system operates.

For example, attorneys might avoid arguments that could humiliate clients, and it might make judges more guarded. Conversely, the newly accessible recordings could encourage other attorneys to "ramp it up" for the Internet audience.

Transparency is key

Other appellate judges and family attorneys have sent letters to the court blasting the rule, he said. In addition, an association of local family attorneys has organized a meeting to discuss how to address it.

Attorney Hewitt offered a solution: Let lawyers request exclusions in cases involving minors. "They need to vet them and look at all the issues before putting them online," she said.

The court, though, stands by its policy on the grounds of transparency and the people's right to know. While the court appreciates opponents' worries, Wojciechowski said, "It is important for litigants, lawyers and the general public to have access to the recordings."

Reach Bobby Allyn at 615-726-5990.

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