With the unprecedented surge of Delta coronavirus cases, many courts had to curtail their operations and some courts had to halt their proceedings. However on a positive note, this disruption to traditional court setting is unmistakably a blessing in disguise and a much needed one to prompt the judiciary to streamline its arcane court procedures with state of the art technologies. According to legal futurist Richard Susskind, the future of legal profession will be increasingly transformational in this internet age and is likely to be replaced by increasingly capable systems with the help of artificial intelligence. The first time you hear this, it may sound weird, but if you think deep down how much the pandemic has changed our lives so far within just a matter of a year, it is not hard to imagine that future legal professionals will offer their practical expertise to their clients in a whole different way.
Even in pressuring times, the constitutional mandate of citizenry cannot be shutdown. The judiciary as a democratic institution must be resilient even in a crisis to carry out its constitutional mandate to guarantee its citizens continuous access to justice. Access to justice is essential and worthy as much as health and economy to a smooth functioning democracy. Therefore doors of justice must at all times be kept open for citizens. In this backdrop, the only conceivable solution to this pandemic driven on and off pattern of court work is inevitably to move courts online. Online courts would also facilitate effective practicing of social distancing guidelines.
With court proceedings moved online, there is a great enthusiasm and excitement among the legal fraternity to experiment with their much hoped work-from-home opportunity. Work-from-home until now was not an option for legal practitioners in the courts of first instance. That is not to say there are no anxieties ,confusions and challenges in adapting to this new virtual reality. The very confusion created by the pandemic has given the legal community an opportunity to experiment and change for the better. The legal community should be prepared to plow through these unpaved virtual territories and must be willing to embark on a trial and error journey until an inclusive, accessible, reliable and convenient virtual legal space better equipped to serve effective justice is eventually created. Now we are just at the foothills of this experimental journey. The success of online courts would very much depend on how quickly the legal community including litigants embraces this new concept and how much investment, effort and confidence the legal community is willing to put in to the new system. In digital age if surgeries can be done remotely, there is no way courts will not be able to find reliable ways to handle trials remotely.
The birth of virtual justice.
With the advent of online courts, then came the premature birth of virtual justice. Virtual justice conveys the futuristic idea that online courts can deliver justice positively in the same way as its conventional peer does in brick-and-motor courthouses. It has been advocated way before the pandemic started, but only in limited circles, and did not come into practical reality until now. It is undoubtedly the face of future justice and would still be the trend after Covid crisis abates in a post-pandemic future. There's absolutely no way litigants and counsels saying no to the convenience brought along with this new virtual realm. It is hoped that just like in any other business in life, what goes online now in courts will remain online for the foreseeable future. However critiques of virtual justice point to elements of unfairness and ineffectiveness and breach of due process of law in justice delivered virtually when compared with justice served in a physical court setting.
Benefits of a virtual court system.
Technology has enormous potential and a vital role to play in making judiciary resilient and accessible even in crisis times. In times of crisis, virtual justice is better than having no justice at all. Virtual courts are more transparent, accessible and convenient for both litigants and legal practitioners. It saves time and energy and is rewarding in austerity times because virtual courts can help cut exorbitant expenses incurred in running brick and motor courthouses and reduce the shocking backlog of caseloads. Virtual courts have the capacity to deal with cases within a reasonable timeframe and prevent delays experienced in the conventional court system. The digitalization of courts would also make the traditional setting of our judiciary and legal profession look more appealing and upgraded in the 21st century.
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Online courts are faster and efficient, and have the potential to reach litigants wherever they are. An attorney or a litigant could just pull over to the side of the road and join the court room with just a tap on their smart phone. Litigants, judges and lawyers no longer will have to spend hours of travelling. For litigants, fighting traffic, missing out on work and waiting in long ques until one's case is called are not a problem anymore. They can appear from the convenience of their homes or their work places.
For lawyers travelling miles and miles to outstation courts would not be a concern anymore. They can unhesitatingly undertake four five matters a day in different courts sometimes in several different jurisdictions with less time gaps between them. Now lawyers are able to jump from one courtroom to another with just a swipe on their smart devices. Thus for lawyers, more matters they are able to attend virtually, their client fee income is more likely to shot up.
There are good reasons for both litigants and lawyers to be uneasy about moving court proceedings online. Digital divide, access to courts, due process of law, attorney-client privilege and litigants' privacy are some of the serious concerns here. However, admittedly there are pros outweighing cons in a virtual court system.
Digital divide and meaningful access to courts.
We've heard of digital divide since we were in eighth grade, but now with the pandemic, impact of digital divide has come into practical reality and poses itself as the major obstacle to moving court proceedings online. Though we believe digital divide has narrowed over the recent years with the prevalence of smartphones users, the divide has not so narrowed as we think.
There are two approaches to digital divide; access divide and skills divide. A significant portion of today's population are digitally impoverished and are living beyond the reach of internet facilities. There is currently no policy incentive or governmental support to the general public to prepare themselves to be at the receiving end of a host of virtual services. Critiques of online courts maintain that justice in whatever form must be made available for all and alleges that virtual courts help only digitally privileged people to participate more in the justice system, but it abandons a large section of low income urban and rural population who are digitally underprivileged or excluded. Without clear policy directives and incentives we are far away from realizing the larger goal of making access to virtual courts available to almost everyone across the socio-economic strata. Access to courts in this context must be intelligible, affordable and accessible to all litigants from every nook and cranny of society. We need to ensure the most vulnerable communities are able to access to virtual courts.
Further, litigants are usually unfamiliar with court procedures and this problem is exacerbated when these laymen are technologically incompetent in a virtual court environment. It is obvious that older folks are much less tech-familiar, tech-illiterate or unwilling to cooperate or master new technologies. Thus poor tech literacy coupled with lack of meaningful access will perpetuate the perceived unfairness in online courts, and will hamper its procedural efficacy.
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Watch how CNN reported the cat filter blooper that went viral via the link below.
Moreover there are serious concerns over the quality of access in online courts. Nothing is more confusing than making an online appearance while your connection cuts in and out. Stressful long waiting periods owing to technological glitches, slow internet, outdated and unreliable devices, lack of high-definition cameras and poor image and video quality of devices, possibility of cross talking, difficulty to interrupt speakers in a multi-party proceedings necessarily devalue the quality of access to courts. These problems also make the court reporters' job a very difficult one in a virtual court set-up. Moreover, speaking on mute, discomfort created by sharing confidential information without control over who can listen to and who cannot, connectivity issues and tech malfunctions can have an overall negative impact on the flow and outcome of a virtual court hearing.
Zoom Kiosks in Texas to bridge the digital divide and widen access to courts.
Asynchronic hearings as an alternative to live online hearings.
In view lack of reliable broadband internet facilities, Singaporean judiciary is looking for ways to introduce asynchronic hearings to enhance access and to capture litigants who are beyond the reach of internet and smart devices in to the virtual court system.
Are litigants deprived of due process in a virtual hearings?
Virtual hearings takes away the opportunity previously available to an accused in conventional in-person hearings to be confronted with witnesses against him face-to-face. Limited ability of virtual courts to ascertain credibility, competence, truthfulness of witnesses in these circumstances further devalues the element of fairness in a trial. The fact that creditworthiness of remote testimonies is at stake in a virtual court environment means virtual hearings are more likely to violate the due process of law.
Are litigants deprived of their right to counsel in virtual hearings?
Physical separation between client and counsel negatively affects the quality of attorney-client relationship and reduces the efficacy of retaining a counsel to a certain extent. A litigant will not be in a position to discretely communicate with the counsel during a video-enabled hearing unlike in an in-person hearing. Confidentiality of attorney-client communications will be also compromised in a virtual court setting as there is no guarantee that their communications will be recorded and may fall into third parties. In these circumstances any conversation between the client and attorney will not be candid and client would not obtain legal advices expected from retaining a lawyer.
Zoom breakout rooms and the issue of privilege of client-counsel communications.
Zoom like any other platform enables the host of a meeting to record conversations without the prior permission of other individual participants. As a result litigants on these platforms are not assured of their privacy and simply cannot help their conversations being recorded.
Therefore litigants must be afforded the opportunity to make an informed consent before disclosing sensitive and confidential information. Given the security issues concerning zoom and other video-conferencing platforms, it is obvious that confidentiality of communications made via these platforms are necessarily going to be compromised. Thus confidentiality of in-trial communications between client and counsel are most likely to be at stake in a virtual hearing.
To address this issue, Michigan Cyber Court has incorporated in its agreement with litigants a term making it clear to litigants that they are presumed to understand that their communications will not be confidential unless otherwise agreed. Therefore it is prudent for online courts to warn litigants of the issue over confidentiality of their communications prior to virtual hearings.
The issue of confidentiality of communications does not stop here. It extends to in-trial communications between counsels of the opposing parties. Video-enabled hearings limit the ability of a counsel to approach the opposed counsel to discuss legal issues without being heard by witnesses or other non-party observers.
Is virtual cross-examination a possibility?
The physical presence in courts is indispensable in ascertaining truthfulness of evidence adduced by parties. The absence of such physical presence in a virtual court set-up makes parties as well as judges less empathetic and less responsive to statements made by each other. In a virtual court environment judges will not have the opportunity to examine appearance, demeanors and body language of witnesses and suspects. Therefore judges will have a hard time gauging their creditworthiness.
Virtual court is a place both emotionally and perceptually distant. No more bowing to judges, no more solemn court rituals and formalities. With the psychological effects associated with simplified court procedures litigants in general are inclined to deliberately dodge and stray from questions and tend to filibuster. Behind screens, devoid of court formalities, witnesses are better able to lie. When they filibuster, it is hard to interrupt and direct these litigants in a video-conference setting, because unlike in physical hearings it takes some time to raise an objection on a video-enabled platform. Filibustering also means waste of court's time.
Further, video-enabled testimonies are also less effective in conveying decisive non verbal information. Due to virtual courts being less responsive and less reliable, remote testimonies necessarily hampers the essence of a fair trial. True, virtual courts deliver justice faster, but fairness and effectiveness of such justice is very doubtful owing to the aforementioned reasons. It is said justice hastened is simply justice denied. Therefore it is safe to conclude that online submissions works well for oral arguments, but doesn't work quite well for cross-examination.
Will virtual courts be open to public viewers?
The objective of the open court principle is to ensure access for all to guarantee public accountability and transparency in the judiciary. The public has the right to visit courts and get a first-hand experience of open court hearings, unless hearings are held in camera for justifiable reasons. Here the public is expected to act as a check on the judiciary. It is obvious that the same level of public access available in conventional courts cannot be made available in virtual hearings owing to a host of reasons which include privacy concerns, possibility of unauthorized recording by participants and difficulty in monitoring participants in a controlled setting. Texas courts have enabled the public to connect to livestreaming of online court proceedings on Youtube. However, this unrestricted public access to video-enabled court proceedings will have devastating consequences on individual litigants' privacy. In the UK the Coronavirus Act 2020 allows public to witness remote hearings but makes unauthorized recording of remote proceedings a criminal offence. In 2021 R(Finch) v Surrey County Council, BBC was fined £28 000 for contempt of court for recording and broadcasting without permission a six seconds footage of a remote hearing.
Identity frauds in virtual courtrooms.
Deepfake face-swap technologies capable of manipulating images, audio and video in real time such as Avatarify, First Order Motion, Sensetime permits litigants to fabricate their identity or impersonate. The inevitable result is that parties tend to doubt the legitimacy of audio and video submissions made during virtual proceedings. Where identity thefts take place it is certainly difficult for the opposed party to prove such fraudulent misrepresentations to the satisfaction of the court.
Therefore parties must be required to verify their identities before court proceedings start. A reliable system must also be set up to collect sensitive personal information, biometric data, or facial recognition of litigants to identify parties both reliably and conveniently. The confidentiality of such information must be guaranteed by the state.
Facial recognition technology in Chinese Courts.
In China, for identification purposes Beijing Internet Court requires litigants to register a personal account online by using their national ID cards, biometrics and facial recognition before bringing in a case remotely. Chinese Public Security Bureau is tasked with keeping this sensitive information safe and confidential.
In China, for identification purposes Beijing Internet Court requires litigants to register a personal account online by using their national ID cards, biometrics and facial recognition before bringing in a case remotely. Chinese Public Security Bureau is tasked with keeping this sensitive information safe and confidential.
To verify the identification of parties and prevent stealing of identities, courts may focus on building a verification system supported by facial recognition technologies as seen in China.
Israeli attorneys' use of smart cards.
In Israel, attorneys are required before they are allowed to participate in online court sessions to verify their identity using a smart card which is managed through a website called Net Hamishpat. Authentication and electronically signing and uploading of the documents to be submitted to court must be performed using this smartcard. In the US state of Oregon judges are also using facial recognition to sign into virtual court rooms.
In Israel, attorneys are required before they are allowed to participate in online court sessions to verify their identity using a smart card which is managed through a website called Net Hamishpat. Authentication and electronically signing and uploading of the documents to be submitted to court must be performed using this smartcard. In the US state of Oregon judges are also using facial recognition to sign into virtual court rooms.
Blockchain for electronic filing and validating process.
Even conventional court procedure involves an intense process of filing massive amounts of legal paper work. Inevitably virtual courts are also compelled to face the challenge of electronically filing, validating, authenticating, securing, storing and safe transmission of court documents.
Blockchain network is an encrypted distributed ledger or database technology without a central server with a greater access to shared data among several partners in a network. Thus requesting for and issuing arrest warrants, search warrants and other court processes can be performed electronically and can be shared in real-time among law-enforcement authorities, prosecutors, jails and courts and all other stakeholders in a computer network. The decentralized storage, immutability , reliability and transparency in Blockchain services has made it a popular tool among courts for validating court records, authenticating evidence, signatures and documents. Evidence can be cryptographically sealed and stored and can be traced back to its origin under a blockchain. The authenticity of court records can also be secured. China and Thailand have already embarked on a plan to develop a network based on blockchain technology for their court systems. And Chinese courts are already using blockchain evidence in cases.
Reliable and safe payment schemes are also essential in a virtual environment to facilitate payments associated with electronic filing of court documents.
Does virtual justice suit to an inquisitorial system than to an adversarial court system?
Judge in an adversarial system is merely tasked with evaluating of evidence adduced by confronting parties on the grounds of veracity, truthfulness and creditworthiness of witnesses. In an inquisitorial system, judge is expected to run the role of main investigator of the case facts and he is not merely sitting there as an impartial referee.
Internet courtrooms are devoid of ceremonial characteristics associated with an in-person trial and cannot afford for cross-examination which is the main feature in an adversarial court system. Internet courts have limited ability to let parties confront with each other. Thus in an adversarial court system, video testimonies can never be equated to testimonies in court. Therefore internet courts are less adversarial. This factor inevitably compels judges in a virtual court environment to take on an investigative role. Thus it is safe to conclude that online courts are better suited to an inquisitorial court system.
The way forward.
Covid driven online court system as of today is more or less a pilot test run of the use of video-conferencing technologies to increase access to courts and efficiency of courts in a socially-distanced environment. It would be fascinating to see how fast the legal community adapts to this new court environment. In the 21st century with almost every other aspect of life being digitalized in some way, the future of the legal profession would also very much depend on its flexibility to adapt to new technologies and the ability to reliably incorporate new technologies into how legal services are offered.
Well written, Compliments from India!
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