The World’s Largest Experiment in Digital Justice

The coronavirus pandemic has resulted in a rapid shift to virtual working, with thousands of court hearings continuing due to video conferencing, virtual hearings and digital court documents. The result? The world’s largest experiment in digital justice. As courts across the world begin to consider how to reopen, we must now ask what can we learn from this unprecedented event, and what it means for the future of virtual and in person hearings?

Like most challenges, the best way for legal practitioners to adapt and grow is to seek out the opportunity in a changing environment. Courts were unable to hold in person hearings and so virtual hearings became the only method of upholding justice. This was driven by courts that has no option to suspend business such as child protection services. Courts developed protocols for effective virtual hearing etiquette, updated document submission methods and ensured sufficient communications with parties to ensure hearings went ahead. Over the past few weeks we have seen the adoption of hybrid hearings, in which some hearings are entirely virtually and others in which some attend court with others connecting remotely. This hybrid approach that has evolved from emergency make-shift virtual hearings to flexible hybrid hearings are imperative for maintaining vital, accessible services for citizens.

The New Normal

It seems unlikely that courts will return to ordinary capacity and support entirely in person hearings. Backlogs created by cases that were postponed due to coronavirus will need to be addressed and for the foreseeable future courts must achieve the determination of a growing number of cases, with reduced access to courtrooms and decreased resources. However, we now have a foundation of experience of working remotely. Despite initial teething problems of moving to digital solutions many judges, lawyers and courts have discovered the efficiency, accessibility and time saving gains of virtual hearings. We must now incorporate the lessons learnt from virtual working, and pre-COVID digital working, to create sustainable solutions for hybrid hearings that uphold justice for our communities now and into the future.

With remote working at a scale never seen before, ensuring secure practices will remain of paramount importance to facilitating effective hybrid hearings. Legal practitioners and courts working remotely must ensure secure communications and the transmission of case documents. The crisis has highlighted how cloud-based solutions offer scalable solutions, with necessary granular access controls, audit trails, and critically offer the flexibility to be accessed remotely. Legal professionals and courts with on-premise solutions were unable to seamlessly move to virtual operations as they rely on traditional software architecture with limited flexibility. In contrast, cloud-based operations are able to be easily accessed securely from any internet enabled device. Cloud-based technology must therefore be at the centre of digital strategy for the successful adoption of hybrid hearings and business operations.

Ensuring Effective Justice

Holding a virtual hearing must also be a fair, just and effective process. Digital solutions must ensure that virtual hearings are easy to follow for all participants. They must ensure that the video conferencing platform used to connect participants is able to run on a range of devices. They must also ensure that court documents are shared with participants ahead of the hearing to ensure court time is used effectively. Sharing court documents has proved a stumbling block for effective virtual hearings in some jurisdictions. England’s Civil Justice Council recently noted that:

“problems with the creation of and access to the documents related to the hearing were a commonly-reported cause [of frustration]. Problems reported with documents included missing bundles, judges not receiving files, people having different files or not being able to locate them. Respondents reported that electronic documents could be difficult to use in practice, due to being provided in several different parts or not being hyperlinked appropriately for easy navigation.”

It is therefore imperative that court documents are indexed, searchable and maintain a single pagination for easy reference in court. It is also critical that documents are able to be reviewed easily and not simply attached to emails or dropped into a cloud folder store. Collaborative presentation tools allow court documents to be securely reviewed and for parties to direct one another to a specific page in real time – eliminating the time wasted waiting for participants to find the right page either in the courtroom or virtually. Practitioners must ensure effective hearings regardless of their physical location.

The Next Steps

The next steps for legal practitioners returning to the courtroom is uncertain. In the meantime, hybrid hearings supported by digital solutions are the most effective method of upkeeping justice and maintaining operations. Courts must ensure they procure secure, cloud-based technology that can be used both in the courtroom and virtually. The evolution of hybrid hearings has proved that when the legal world puts their reservations about remote working aside effective new practices can occur that help maintain essential services and increase access to justice.

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