Many years ago, Albert Mehrabian, now a professor at the University of California at Los Angeles (UCLA) determined that approximately 55% of our communication is non-verbal; 38% of it is vocal (tone)  and 7% is words only, meaning body language can be very revealing.

This simple fact played itself out in a recent non-published appellate court decision entitled D. Z.  vs L.B. et al, Third Appellate District (El Dorado), Case No.   C093008 (May 19, 2922). While non -published decisions are to have no precedential effect and should not be cited for any reason, the decision provides a valuable lesson for our pandemic world of Zoom (or any other type of video conferencing!)

The matter involved a restraining order. The Plaintiff- Dr.  D. Z. (“Dr. Z.”) – and the Defendants- L.B. and M.S. were neighbors. The trial court granted Dr. Z. – the plaintiff- a civil harassment retraining order against the defendants. It appears that Dr. Z and his wife moved to Cool, California in February 2018, sharing a property line with the defendants. (Id. at 1-2.) According to plaintiff, defendants “relentlessly stalked and harassed” Dr. Z and his wife. (Id. at 2.) Among other things, Defendants lodged what turned out to be a false complaint against Dr. Z alleging that their loose dog (It turned out NOT to be their dog!) was bothering defendants’ livestock, “…used a  tractor trailer to push donkey manure onto the Z.’s  property and made loud crashing sounds trying to spook Z.’s horses while T.Z.  (his wife) was riding  the horses. “(Id. at 3.)

So, the court held an Order to Show Cause hearing to decide whether to issue the restraining order.  Each party appeared by counsel. While both appeared by Zoom, the plaintiff Dr. Z and his wife appeared both visually and audibly. On the other hand, Defendant appeared by audio only. At the start of the hearing, counsel for Dr. Z and his wife asked whether it was acceptable with the court and opposing counsel to appear by Zoom (that is, with both the audio and video on) and the court asked Counsel for defendant if “… he had [a]ny problem with that…?” (Id. at 3.) Defense counsel responded “[n]o problem.” (Id.)    The hearing proceeding during which Plaintiff’s counsel had a witness testify via Zoom. (Id. at 3-4.) Defendants also testified. (Id.)

The trial court issued the restraining order, noting that it had some concerns about the credibility of defendant, determining that some of her statements were not accurate or truthful. (Id. at 5.)

On appeal, defendants, among other things, argues that their

“constitutional right to procedural due process was violated because the trial court was able to physically observe Hill [witness] and Dr. Z. via videoconference but was unable to observe her demeaner because her testimony was presented by a means that provided audio only.” (Id. at 7.)

The court rejected this contention stating that defendants had forfeited the right to raise it as they did not object to how the parties were appearing at the hearing at the time of the hearing. (Id.) The appellate court – looking at both the minute order and the transcript of the hearing- noted that counsel for Dr. Z specifically noted on the record that he, his clients and witness were appearing by Zoom and asked the court if that was okay. The court then specifically asked defense counsel if he “had any problem with that” to which counsel said, “no problem.” (Id. at 8.) The appellate court pointed out that if counsel did, indeed, have a problem – that was the time to say so and object. By not objecting, they waived the right to now object. The appellate court noted that if for some reason, defendants were having technological problems (e.g., The camera was not working.), they could have said something and asked for a continuance which the court probably would have granted on a showing of good cause. (Id. at 8-9.) As defendants and her counsel had ample opportunity to raise any objections at the time of the hearing and failed to do so, the appellate court held that they forfeited their right to have the restraining order reversed on this ground (Id. at 9.)  (Ultimately, the appellate court partially reversed the order on other grounds- that it was also entered against a party not named as a defendant in the original petition-( Id. at 9-11.))

Would the matter have come out differently if Defendant appeared by video as well as audio? Who knows? But as nonverbal communication makes up the bulk of the way we communicate- having that camera on can make a significant difference.

So- if you are ever thinking about attending an important meeting by audio only- give it some second thoughts- visually appearing may be a much better option!

… Just something to think about.







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