Covid, courts & computers

We usually think of the legal profession as slow to change. However, due to the coronavirus, courts (like many businesses) were faced with two options: either close completely, or adapt. The results have altered the way lawyers, and their clients, access the court system, but with restrictions starting to ease, it looks like many changes are expected (and should) become a mainstay.

The changes

The pandemic resulted in the proliferation of e-solutions to enable the legal and judicial system to continue to operate, including:

  • Audio visual link (AVL) technology – AVL has been used in some way since the 1990s (particularly to take sensitive witness statements), however until the pandemic courts could not hold purely online hearings. In 2020, history was made by the High Court in Cumberland v The Queen [2020] HCA 21, and courts have since used a combination of Webex, Skype, Zoom, Teams and other AVL technology to conduct fully virtual hearings.
  • E-filing – e-filing was previously supplementary to the physical filing of documents and was not designed to replace in-person services. After the pandemic, all face-to-face services ceased, and e-filing became mandatory through the courts’ respective portals (hurrah!).
  • Digital signing and witnessing – while electronic signatures have been commonplace commercially, until recently there have been substantial barriers to using e-signatures for certain legal documents. With the pandemic, governments focused their minds, and in NSW, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 allowed for the remote witnessing of documents, with similar measures taken in some other jurisdictions. In February 2022, the Senate passed the Corporations Amendment (Meetings and Documents) Bill 2021, which permanently allows for electronic signatures and virtual meetings under the Corporations Act 2001 (Cth).
  • Online dispute resolution (ODR) – ODR is a form of dispute settlement that combines the internet with alternative dispute resolution methods, which is just a fancy of way of saying, mediation by video conference. This allows mediation and arbitration to still occur even while people can’t get together physically. The purpose-built Australian platform ‘Immediation’ is now being used by the Federal Court.

The challenges

While the legal profession and public have welcomed the introduction of technology-based solutions during the pandemic, there are challenges:

  • Unequal access to technology – Not everyone has perfect or reliable internet or computer access, and nor are we all created equal when it comes to technical skill. This kind of ‘digital divide’ can also disadvantage people with disabilities or language needs, where a traditional courtroom would have had ready help (such as interpreters to hand).
  • Procedural fairness – Technical problems can sometimes mean that one party cannot be seen or heard. Judges now need to decide which party is more prejudiced – the party with technical problems or the other party if the matter is adjourned.
  • Justice must be seen to be done – Courts have always been ‘open’ to the public to ensure citizens have confidence in the court process. In the pandemic, courts tried to mirror real life through livestreams, giving citizens dial-ins to hearings, and by providing transcripts of proceedings and written reasons in the usual way. However, some commentators worry that providing such a high level of easy access to the courtroom is counterproductive and may undermine the dignity of the court (and those it serves). We have all been in a virtual court room where a non-advocate has failed to mute their line and whilst providing a sometimes appreciated source of entertainment, the disruption is significant.
  • Data security – Users must be able to be confident in the safety of their data, and so any technology utilised must be adequately secure and continuously updated.
  • Witnesses – Prior to the pandemic, not all barristers were experienced in remote examination, and some were concerned that it may affect outcomes. The Berkley Research Group for example pointed out that ‘zoom fatigue’, the effect of an overly relaxed setting (i.e. one’s own living room), and the potential to interpret a technical delay as witness hesitation, could all skew the way both witnesses behaved and the way their behaviour was understood by courts and advocates.
  • Juries – There are various process concerns over conducting jury trials remotely and how this may affect bias and fairness. For one, it’s likely that only those with sufficient technology would be able to partake, which impacts the representative nature of a jury.
  • Timetable and notice non-compliance – The ability to make submissions to the court and for matters to be determined ‘on the papers’ has arguably removed a degree of pressure in relation to timetable compliance as advocates no longer fear the wrath of reprisal of a judge from the bar table. This can, in some cases. substantially hamper the progress of the matter and increase costs to end clients.

Beyond the pandemic

Some advocates hanker for the good old days and there is a sizable lobby group of barristers asking courts to throw out every new technology in favour of the old. However, physical hearings are also imperfect, and no one benefits if we glorify ‘the way things were’ without objective analysis.

Despite the challenges, we can all accept that remote access has a role to play in increasing efficiency, achieving time and cost savings, and removing the tyranny of distance. This increases accessibility for everyone. The wasted time that lawyers have historically spent physically waiting in court for mentions (and which they have to charge clients for) has also disappeared. On the other hand, when meetings have to be scheduled and there’s no hanging about in courtroom corridors, it’s harder for lawyers to have quiet chats with each other and feel out delicately whether either side is open to a compromise. We quite frankly also miss the opportunity to step away from the screens and take a brisk walk up to court.

What’s needed as restrictions ease is for courts and solicitors to embrace every advantage that technology can provide, while ensuring that justice continues to be served. This is likely to involve a cherry picking of pandemic technology, to produce a hybrid style of model, where routine directions and matter timetabling can continue to occur virtually or on the papers, with final and significant interlocutory hearings remaining in person.

How crichton & co legal can help

Crichton & Co Legal is a boutique law firm with specialist expertise in commercial disputes. We leverage extensive experience in defending and prosecuting litigation to help clients resolve conflict, including through alternative dispute resolution processes such as arbitration and mediation. Our approach is strategic and commercial, but we have the technical prowess to fight where warranted.

Unlike traditional law firms, we strive to keep our overheads low; providing flexible solutions and leveraging state of the art technology and a wide network of specialists to achieve our competitive edge. As a result, our clients gain access to our top-tier pedigree and service delivery, whilst only paying for what they need.

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