Repost of an article by Professor Susskind
Video hearings have transformed courts but are not a panacea
Remote hearings have boomed during the Covid pandemic, but further technological change is required for a sustainable future court system
Thursday April 01 2021, 12.01am, The Times
Aquestion has been in the air about international justice systems since the 1990s: is court a service or a place? The resounding answer from Albania to Zambia is that in some cases parties do not need to assemble physically to have the state settle their legal differences.
Yet despite the rapid adoption of video hearings as a result of the coronavirus restrictions — a year ago about 20 jurisdictions were handling cases by video compared with nearly 170 now, according to a recent survey — the UK and international courts are still at the foothills of technological change.
Anecdotes about video hearings abound — from a lavatory-flushing incident during a remote hearing of the US Supreme Court, to the tale of the Texas attorney who appeared before a judge as a talking cat face courtesy of a Zoom filter.
Case studies in resourcefulness are also in abundance, from the repurposing of cinemas in Scotland into remote jury trial centres, to the provision of laptops by the UN development programme to Sri Lanka’s Ministry of Justice to boost their use of remote hearings.
There have been disturbing reports too — after a three-hour hearing at Lagos High Court, “the virtual judgment of the court”, in the words of Justice Dada, was that the accused “be hanged by the neck”.
But overall, satisfaction with video hearings among judges and lawyers is much higher than would have been predicted in early 2020. They have adapted with alacrity when it became clear that they had no choice.
Using video systems in earnest has led cynics to be unlikely advocates of technological change. Equally, most litigants say that participating remotely is more convenient and less forbidding than appearing in courtrooms. In terms of open justice, many report that video hearings are more accessible to the media and the public.
Certain types of dispute have emerged as well suited to remote handling: interim, procedural and interlocutory hearings; routine family work; small money claims; minor criminal offences; many commercial disputes; administrative cases; and civil appeals.
It is no shock that two thirds of the respondents in research that will soon be published by Remote Courts Worldwide — a website run by the Society for Computers and Law, and LawtechUK — said that remote proceedings could serve as a “long-term, viable means of providing court services”.
The explosive uptake of video hearings cannot be denied, but nor should their limitations. It is clear that for some cases — such as sensitive family work, serious crime, or where extensive cross-examination is required — conventional physical hearings are preferable. Much more analysis needs to be done to determine what types of issues are best suited to what types of disposal, whether in person, by audio or video, or even on the papers alone.
However, it is clear, in principle, that video hearings are not a panacea. In practice too there are concerns. There are reservations about privacy and security. There are fears that the “majesty” of a court is lost in remote hearings — although many argue that solemnity and authority should suffice.
There have been difficulties for the elderly, for those requiring translation and for court users with poor internet connection or other technical hitches, including judges working from court buildings with poor wi-fi. If the technology fails or falters, confidence plummets. The tolerance of technological glitches that judges and court users have shown in the past year is unlikely to continue as Covid fades.
Likewise, technological solutions are needed for another problem — that mass lists of short cases or applications run more quickly in the traditional system than when handled by video. The answer here probably lies in the provision of virtual lobbies and online collaboration spaces — but again if video is to play a leading role in the post-Covid recovery, the whole set-up needs to be industrialised.
In technological terms, video hearings are Stone Age stuff conceived in the 1980s. Their recent adoption offers a kick-start to the transformation of our courts. But the ad hoc Covid systems will be superseded this decade by asynchronous procedures, court-connected online dispute resolution, telepresence, virtual reality, blockchain, and artificial intelligence, terms as unfamiliar to most lawyers now as Zoom and Teams were 12 months ago.
If today’s video hearings are claimed to be the main answer to the future of courts, we are asking the wrong question. A sustainable, technology-enabled court service of the future will offer a blend of physical and online service — of which video is but one option — that is optimised for different types of cases, balancing the interests of court users with the practicalities of delivering a public service.
To get there we will need greater government investment and the support and vision of leaders across the legal community.
Richard Susskind is the technology adviser to the lord chief justice of England and Wales