The future of virtual court hearings - why are they here to stay?
Conducting virtual court hearings and virtual court proceedings was initially met with a large dose of scepticism by judges, lawyers and other court users. Now, after more than 14 months of the ‘new normal’, scepticism has given way to necessity, and it’s more likely you’ll hear a positive view of the virtual court experience.
Whether generic platforms e.g. Zoom or new court hearing technology developed to leverage industrial-strength collaboration platforms such as Microsoft Teams, court users are now more likely to share positive feedback about how efficient court e-transformation in its various guises is. While the first months of the pandemic were quite unclear and everybody thought the changes in court proceedings were temporary, things are now so different, with no end in sight. There is every likelihood that virtual courts, having proved their value in the most trying of situations, will become part of the long-term judicial digital strategy.
According to interviews with more than 30 state and federal judges, lawyers, court staff in 16 U.S. states and the District of Columbia, the digital transformation of courts is probably going to stay… “We’re going to be doing court business remotely forever. This has changed the world.” - Nathan Hecht, chief justice of the Texas Supreme Court and co-chair of the National Center for State Court’s pandemic rapid response team.
In-person court hearings vs virtual court hearings via Zoom, Skype and Microsoft Teams
At the start of the pandemic in-person vs. virtual hearings was black-and-white but now it’s more nuanced. For instance, in criminal court trials where witness credibility is closely examined, in-person court appearances and hearings won’t be replaced by virtual ones, although they could be supplemented. But civil court cases are likely to embrace the digital court hearing solution for permanent future use.
In a very recent report, The House of Lords urges the government to find alternatives to court possession cases to deal with the backlog of eviction hearings conservatively estimated at more than 20,000 and growing exponentially. The Committee says the courts, weakened by years of spending cuts, are now ill prepared to deal with the huge pipeline of delayed eviction hearings, which will only worsen when restrictions are eased. “…the stay on housing possession claims protected private and social renters from eviction during the COVID-19 pandemic, and was a significant step in providing security of tenure for most tenants in England and Wales during a difficult period,” the report says. “However, it has contributed to the backlog in the courts, further undermining the timely delivery of justice and placing additional pressure on the justice system. …the backlog across jurisdictions remains unacceptably high.” - The House of Lords’ Constitution Committee
Kimberly Mueller, chief judge of the U.S. District Court for the Eastern District of California is quoted by Bloomberg News: “I’ve become persuaded that the video conferencing by Zoom for civil scheduling conferences, civil law in motion, and quite a bit of criminal pre-trial work is a good enough equivalent to seeing someone in person”.
Embracing digital transformation via court case management systems, virtual hearing solutions, and self-service portals is evident in many countries now. This e-Justice revolution brings a lot of novelty to the routine of courts. Everyone uses Zoom these days, right? Well, a meeting to review HR policies may be fine on Zoom, but opportunities in the Justice sector must be approached strategically to avoid chaos, especially now that we can see changes that usually require 5-10 years, potentially roll out in the relative blink of an eye.
“In three months, we have changed more than in the past three decades, and now that we know innovation is possible, we have a unique opportunity to create long-term and much-needed change for our justice system.” – Bridget Mary McCormack, Michigan Supreme Court chief justice.
Benefits of virtual court hearings
What does it mean for a justice system to be efficient? It means the management of caseloads and backlogs can proceed without further increase and delay. Of course, efficiency has different dimensions for different court users, but it all comes down to time. If we accept that the average duration of a court hearing is 20 minutes, imagine how much more time we add to this task by travelling and waiting, etc. Those are typically wasted hours which can be put to productive use with the help of technology.
“We have learned that we can achieve efficiencies without sacrificing what we value by using technology more than we did before, – Lee Rosenthal, chief judge in the Southern District of Texas, quoted by Bloomberg news.
Video conferencing tools are doing a great job in replacing in-person court hearings. But if the courts are to achieve long-term benefits from court hearings, they should look for a dedicated court hearing solution like Virtual Hearing for Microsoft Teams, because it is a solution specifically designed for courts . In other words, not simply a solution for online meetings, but a solution which converts online meetings into virtual court hearings.
Virtual courts also improve the accessibility of litigants. Carolyn Bell, a Florida state court judge, quoted by Bloomberg News says that virtual hearings led to fewer no-shows at her court hearings. It’s simply because litigants don’t have to take time off from work or disrupt their daily routine to appear in virtual court. Therefore, they are more likely to keep their appointments.
Another benefit in terms of accessibility is a psychological one. People who represent themselves are more confident when using solutions like Microsoft Teams for court hearings because they can be less intimidating; levelling-up, if you like. Anyone who has been a litigant-in-person will know what I mean!
“In the state courts, particularly people that don’t have lawyers, when they’re doing the Zoom hearing they actually feel more equal and able to communicate,” said Jeremy Fogel, a former federal judge and an executive director of the Berkeley Judicial Institute.
The same applies to domestic violence victims who often feel vulnerable in the presence of their abuser. Virtual courts are making justice more accessible to them simply by creating the needed psychological distance from their abuser.
Virtual hearings have detractors, though. Along with their benefits, remote court hearings come with some reservations. Randy Gioia, Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services in Massachusetts, argues that witnesses are more likely to tell the truth if they have to look the judge, the jury, and an accused person in the eye. It just may take 12 months for them to reach court to do so, which is justice delayed… for victims and defendants! I believe virtual hearings will reduce the courts’ in-person workloads, which means hearings where witness reliability could be in question can happen sooner. In my opinion, this far outweighs any argument about ‘looking the accused in the eye’.
The future of virtual courts - virtual hearings for civil cases, in-person appearance for criminal cases
What we’ve experienced in the past 14 months is innovation that usually takes 5-10 years. It may not be perfect, but it’s a start due to necessity, and we may find ‘perfect’ isn’t necessary after all. Like all large and complex government IT projects, aiming for ‘perfect’ may be the goal, but in practice it’s never achieved because the goalposts are constantly moving.
HMCTS’ Common Platform is an example of how the UK is reforming justice and is encouraging the digital future of courts. Whether courts will extend their virtual hearing practices after the pandemic depends on the courts and judges. One thing is clear, courts that decide to continue with virtual proceedings will have to re-think whether they continue with the plethora of AV equipment deployed over the years, live with the generic virtual conferencing platforms like Zoom with all the well-documented security concerns, or make the jump to dedicated court hearing platforms built on industrial-strength platforms such as Microsoft Teams.