Virtual Court Hearings: should they be used all the time? [Part 2]
Why are we abandoning millions of years of biological communication technology for an imperfect system based on virtual court hearings?
[This is Part-2 of a two-part article. For Part-1, see here].
The answer is a ‘No’.
The intrusion of Virtual technology in court hearings
The human ability to use tools set it apart from other species and ensured its success. So technology has been with us for millions of years.
Fast forward to a millennium and get into a court: there are no better examples of its glorious successes, nor a woeful record of its failings.
True it is that legal proceedings must be effective and efficient.
The increasing number of cases, the shortage of judges and courtrooms, and the sheer lack of time will all have to be, at some point, overcome by exploiting technology: and not only by virtual or online hearings.
The advantages of having online hearings
They are the obvious ones: witnesses need not travel from far distances to attend court.
They can speak from the comfort of their homes.
Lawyers themselves do not have to travel great distances carrying a large number of documents.
This saves time.
There are no parking woes.
Nobody is rushing around getting caught in traffic jams.
But all that is not the thrust of this essay – it is its organic beauty that is in danger of being lost forever in a fit of over-enthusiastic desire that technology is the be-all and the end-all.
When a group of people come together and communicate with each other, a psychological dynamic is constructed.
There is a ‘free flow’ of ideas, thoughts and subtle energies. That ‘psychological community’ – that coming together of different minds at the same place and at the same time – is lost when people are remotely connected through a technological medium converse with each other.
“You see, communication is not conversation: it is more than a transfer of sounds and syllables through an optical cable.
When a person canvasses or is listening to a composition, they ‘speak’ either by the silence, or by the body language.
In an ‘online hearing’, these non-verbal signals are difficult to detect.
The slight shifting of the shoulders, the inclination of the head to the one or the other side, the movement of the eyebrows, interaction with parties sitting near them, eye contact, the forward-leaning and backward leaning of the subject, and the general movement of the body is completely obscured.
Ask any practising lawyer.
Ask any experienced judge.
It is well established that non-verbal signals give away a person’s ‘internal messaging system’.
“In online hearings all that is lost.
The psychologists explain it in fancy words.
We shall not go into that.
The point being driven is: it is bad for the parties, the judges, and for the overall development of the law.
WHAT IS THE ARGUMENT ON THE OTHER SIDE?
Age is synonymous with experience
Has it occurred to you that it is an aged population that makes decisions for society – in any area of endeavour?
The young provide energy and resources.
It has always been this way; whether today or 700 years ago.
And therefore, the most important people in the system are those who are elderly.
So it is in the legal profession.
It is the elders in the judicial society and the legal profession, who, by their accumulated wisdom, drive, in the microscopic world of each case, its progress and its just conclusion.
In a larger context, they also determine the growth of the law and its development.
Older members of the Bar and Bench may find it more difficult to adapt to the changing nuances of unknown technology.
A technology difficult to be grasped by the elderly, and who may have no aptitude for it, is simply useless technology.
I remember a friend buying the latest iPhone for his father.
The father complained of ‘not being able to use it’ because he was not familiar with its menu – this is technological inertia.
Many of our elders have only less than a superficial knowledge of the apps such as Skype, Zoom, or Webex.
These require extensive training – that too in an environment where the software is constantly changing; and new apps compete for dominance.
What went wrong?
We all used Wordstar in the late 1980s.
We now use MS Word.
We write more, cut down more trees, and today’s arguments make less sense.
“Some mistakes simply cannot be made
All users of technology need to err.
It is from mistakes that we learn, after all.
But, in using technology, we cannot accept errors made by our elders: this will result in injustice.
And therefore, why take the risk of using poorly understood technology in cases involving fundamental rights?
Or large matters of commerce?
The lack of security in some online communication systems
Where documents are being transmitted in cyberspace during a hearing, it may be intercepted or sabotaged during transmission: that would complicate matters for the litigants and the courts.
The medium of communication is no longer the air
The medium of conversation or electronic signals running through fibre-optic cables are controlled by one or a series of powerful private companies.
It is a body so vast, and one over which neither the Executive nor the Judiciary has any control.
If that body itself is being sued, what guarantee is there that they would not be eavesdropping on or trying to control, or at worse, subvert online court hearings?
Judicial Interruptions are different in Online hearings
In an open court setting, judicial interruptions are common: they are expected.
Technology actually wastes greater time
In the old days, we looked up a point in the Legal Indices.
We were, often, confronted with the need to examine perhaps ten cases on a point.
These days, electronic journals throw up 1,000 answers to a simple query. I still get more ‘hits’ than I can deal with in an hour.
To ‘refine’ and ‘reduce’ the ‘hits’, one has to learn new techniques: Boolean logic, wildcard searches, natural language determinants and so forth.
One has to understand both logic and some elements of mathematics.
Who has the time for it? And if you ask me, time is the most precious commodity in the universe. It is never gained: and always irretrievably lost.
I am old; and so I want to spend my precious time learning something that will free up more time, not take up more of it.
New Protocols do waste time
It is necessary to create a ‘protocol’ on how online hearings need to be conducted.
When arguments are being heard, it is usually destructive, in online communication, to keep interrupting.
Having heard the live streaming on the morning of the first online hearing at the Court of Appeal, the interactions were minimal.
The judges were unusually quiet.
In a normal setting, that entire hearing could have been resolved between three and five minutes.
The judges spent almost an hour and 40 minutes in dealing with an application, that was, to me at least, pedestrian.
In that hour and 40 minutes, a normal panel of Court of Appeal judges may have cleared at least two to three interlocutory hearings.
The overall ‘far-away’ feeling – and ‘out of body experience’, if you will, of ‘online conferences’, can be unnerving to the uninitiated, especially witnesses.
In fact, this sense of being ‘distally removed’ from the other person, or the ‘scene’, prevents any kind of ‘freewheeling discussion’ that is normally seen in appellate hearings.
So, the long term effect of over-reliance on technology may result in one becoming overly slavish to protocol. One becomes overly ‘technology-dependent.’
Oral hearings actually create greater burdens of work
International arbitrations involve parties and witnesses from across the globe.
This necessitates cross-examination of witnesses over large distances.
In one arbitration I attended as counsel years and years ago, the claimants took a long time. The defence team was divided into two: most were represented by another set of counsel, we represented one. So the first Set of defendants took the lions share of the defence. That had nothing to do with us. With more than five impatient witness waiting in the wings, it became clear that we would not have more than two hours left for everyone, and our team had, therefore, to cut down time for our witnesses.
So we decided that the best strategy was to cut down time for cross examining our opponents’ witnesses, and make the most of the available time or our own witnesses.
I had cross-examined, from Singapore, a witness sitting in the Alps. Behind his window, I could see descending flakes of snow.
Our original plan was cross examination for an hour.
I took all of 20 minutes. But I had to prepare a week for that single cross-examination.
The team anxiously examined the records on how 70 questions could be reduced to 5.
No one slept. The next morning, we went bleary-eyed to the hearing and concluded it in time.
In a normal court setting, we would not have had that problem.
The witness could always have been ‘recalled.’
So, the examination of witnesses using online hearings may not always work.
And when they do work, counsel end up doing three or four times more work.
This will translate into the client having to pay three or four times more fees.
A Protocol is needed
Recently the Korean commercial arbitration board concluded that ‘as international arbitration becomes increasingly globalised’, and as the technology underlying video conferencing becomes increasingly powerful and sophisticated, practitioners may increasingly turn to videoconferencing and conduct the examination of witnesses online.
To this end, it is in the interest of the arbitration community to develop a sensible and clear protocol of best practices to ensure that such conferencing is effected, fairly and efficiently.
And therefore, the Seoul Protocol And Videoconferencing in International Arbitration was introduced at the Seventh Asia Pacific conference, held in Seoul, Korea on the fifth and sixth November 2018. (It is available here).
It may be useful to look at that protocol in order to determine whether that can be used for the examination of witnesses.
Document referencing during the hearing is complex.
A judge is often called upon to look at five or six pieces of documents and at the same time, carry out a comparative analysis. No one said it cannot be done electronically.
We do it all the time with our iPads. But how big is the space on an iPad?
Judges are usually older than 55 years of age.
They will have to look at documents one at a time, not like the present where they can sometimes put across on bench different documents.
There is a safety issue as well – kidnapping witnesses & ‘coaching off camera’
The court may think it is more efficient.
No one would know if the witness has actually been kidnapped, or is being compelled, in a remote place, to give evidence in circumstances which are less than secure.
Or on the flip side of the coin, the witness is being ‘coached off camera’.
If you think we are all being over-dramatic, I would remind you that once in Indonesia, an entire team of witnesses and arbitrators were taken away and held in a separate place. The less said, the better.
Quality of hearings will be compromised
In the old days, the courts relied only on oral hearings. In the early 1990s this was substituted with written arguments.
Lawyers began to send in reams of arguments.
During actual arguments, it became clear that judges had not had the time to ‘read’ the submissions.
It is not their fault.
If I had 2,000 pages to read a week, I would ignore written submissions and proceed directly to the ‘Introduction’ and then the ‘Conclusion’.
Wouldn’t you? Or would you to read four reams of drivel?
The judges were then forced to cut down the arguments.
They would reduce propositions to a one-line or two-line argument:
‘What you mean to ask us, counsel, is whether X really translates into Y, don’t you …?’
And so, the arguments would proceed.
Just sorting who meant what took too long.
And so, everyone took a long time.
One Indian Supreme Court Judge never read arguments.
He would ‘turn on’ his ‘hearing ear’ only in court. I do not know if our judges would be so sanguine.
And so, the courts adopted the Written Submission as an ‘improved technology’: these were meant to reduce the time taken for oral arguments.
After three decades that has now forced the judiciary to read thousands of pages of arguments.
If anyone can cast your minds back to 1990, there really was not a problem.
Sometimes what could be said in 20 minutes would be said in 60: but only an hour was lost at the end. Now 180 minutes are being spent just trying to understand the arguments of counsel for a single case.
What would you have? I would go back to oral hearings.
This unusual phenomena has been increasingly reported in the last two months: and that coincides with the Covid-19 pandemic lockdown.
There is was persistent complaints, especially by those who were above middle age, of participant feeling exhausted after an hour’s online meeting.
It seems to require ‘sleeping it off’ for an equal period. I experienced this regularly during that time: may be it is just me.
The human organism
The human person is the most advanced ‘online technology’ ever created.
The human mind is a complex thing. To the small extent they are understood, thoughts are transmitted through a series of signals sent through a series of ‘synapses’.
This organic structure, both biological and mental, go back to millions of years of synaptic development.
Nerve structures helped a person ‘read’ his or her environment.
Limiting that inbuilt biological capacity and subordinating it to an electronic one is not the very best method of dealing with communication or indeed, justice.
Online communication tools are new, and they are still developing.
That being the case, such technology should be used in the most minimal circumstances, for case management, for interlocutory hearings, and for other administrative matters.
Full-fledged trials, appeal arguments, and constitutional issues should be done face-to-face.
That is my view, anyway.
What do you think?
[The author wishes to thank Ms.KN Geetha, Mr GS Saran and Mr JD Prabhkirat Singh for their assistance.]
Caution and disclaimer
The views expressed here are not legal advice and cannot be so accepted. If you have a legal issue, seek independent legal advice, because your legal or factual circumstance may be different, and upon proper analysis, may lead to a different legal consequence than that contemplated here. Were you to rely on the contents of this article, the author does not accept responsibility, any loss or prejudice or consequence that may result.