LegalTech | Virtual Court Hearing
The Rise of Virtual Court Hearing Globally: The New Normal [2020 Analysis]
An outlook of virtual court hearings in various countries, and arguments for and against its adoption
The concept of virtual court hearing is not a novel concept. For many years before now, lawyers and members of the public have been clamoring for that digital shift.
But for a number of reasons, one of which is the preservation of the legal profession’s traditionality — as its proponent call it — the move has been severally resisted.
Others cite concerns about data security, privacy, and the huge public cost that could go into putting together a near-perfect virtual justice dispensation framework.
Despite an apparent lack of change in the circumstances for these oppositions, courts in various jurisdictions across several continents have and are still holding online court sittings — amidst other legaltech adoption trends.
From Africa to America, Europe, Asia and the rest, the Covid-19 has indeed opened up the frontier of virtual justice for litigants and the general public alike — the new normal, as it’s fondly called.
Enough of commentaries, let’s see what virtual court hearing is all about.
What is Virtual Court Hearing?
Virtual court hearing are court proceedings— whether hybrid or fully virtual — that are held remotely (or through electronic means).
It is hybrid when some parties to the proceeding physically gather in a particular place while others join online, but is fully virtual when everyone joins online - like the above.
Having gotten that out of the way, it’s time to take a look at efforts of apex courts in varying jurisdictions and on various continents, regarding virtual court hearings.
Why their apex courts, you might ask? Here’s your answer
Consequence of Virtual Hearing Adoption by Apex Courts
When conflict arise, parties take themselves to court for clarification and resolution. If unsatisfied, either party can appeal such decision(s) up till the apex court on the country’s judicial hierarchy — could be the Supreme, Federal, or High Court.
So, if there’s going to be any legal battle regarding the legality or legitimacy of virtual proceedings, the apex court wields the biggest gavel and would sure have the final say.
Now that courts at the echelon of most jurisdiction’s judicial hierarchy are themselves adopting virtual operations or giving it their blessings, it is safe to say that there won’t be any bounce back.
Adoption of Remote Hearing in Selected Jurisdiction Across the Globe
Now, let’s delve into efforts by apex courts’ in selected countries from each continent, in respect of remote hearing.
Nigeria (African Continent)
The first-ever remote court proceeding in Nigeria held on the 27th of April, 2020, hosted by the a trial High court. Since the hearing, several other lower courts too have held virtual hearings for pressing and urgent matters.
Surprisingly, the Supreme Court of Nigeria upheld the validity of these virtual proceedings in the country.
The pronouncement by the apex court came on the heels of suits filed by Attorney Generals of states whose judiciary heads (Chief Judges) had given judges the go-ahead to conduct remote hearings.
The 7-man panel of the top court opinionated that virtual hearings were not unconstitutional as alleged by the petitioners — describing the suits as speculative and academic, since it wasn’t satisfactorily proven that remote proceedings injured anyone’s right or interest.
Bottom line: Although the Nigerian Supreme Court did not hold any virtual hearing on its part, it has nonetheless given its blessing to lower courts to toe that path.
United States
Being a jurisdiction that embraces innovation amazingly fast, remote court hearing isn’t a new trend in the US. As far back as 2002, the state of Michigan has been operating a virtual court for the settling of urgent business disputes.
Fast forward to 18 years, the sit-at-home government order has pushed more federal and state courts into adopting virtual judicial proceedings.
This mainstream shift can be credited to the CARES Act (Coronavirus Aid Relief and Economic Security Act) of March 27, 2020 which legitimized videoconferenced judicial proceedings.
From May 4, 2020, the SCOTUS started to virtually hear cases. Attorneys and justices of the apex court joined remotely from their various locations with audio feeds relayed to the public.
So far, it has delivered more than 20 judgments.
Canada
The Canadian judiciary is not left out in the remote hearing trend. Canada’s top court, the Supreme Court, held its first-ever virtual hearing on June 9, 2020.
Zoom was the preferred platform and the live feed of the proceeding was streamed across YouTube, as well as on the apex court’s website.
Since the Owners, Strata Plan v. Crystal Square case remote hearing, the court has heard three other cases, all bordering on admissibility of evidence, contracts law and the right to timely trial.
India
69,991 cases. That’s how many court cases the Indian Supreme Court has virtually heard since the pandemic began. This makes the Asian court the most productive apex globally during the pandemic.
It kicked off its spate of virtual hearing on the 23rd of March and has so far delivered more than 600 judgments.
India’s Supreme Court registry shares links through which attorneys, parties, and the general public can participate in proceedings. Most of the cases sat on by the apex court at this critical time cuts mainly across migration and novel Covid-19 induced legal situations.
United Kingdom (UK)
As far back as the 24th of March, 2020, the Supreme Court of the Commonwealth has been holding remote hearings.
Since then and till now, the apex court has continued to remotely carry out its judicial responsibilities. Justices of the court, attorneys and their clients, have all been able to actively participate from their various locations.
The general public aren’t left out as they can witness the hearing from the live-stream made available through the court’s website.
The top court has taken up more than 10 cases and pronounced up to 15 judgments.
Australia
Since the outbreak of the COVID-19, the Federal Court of Australia — like much of other supreme courts, has remained operational. The apex court of the Australian jurisdiction remotely conducts trials and holds interlocutory hearings, and appeals-through either of video and telephone conferencing.
Aside from remote hearing of existing cases, the top Court also allows litigants electronically file document and institute new court actions through its Digital Lodgement System Portal.
Concerns about Virtual Hearing of Cases
From time immemorial, several arguments have been and continues to be proffered for and against mainstream adoption of virtual hearing of cases. The most prominent of these arguments and appropriate responses, are produced hereunder.
The Open court or public access argument
The above is a judicial and legal principle that holds true across all judicial systems. It is to the effect that the public — litigants and non-litigants — should have equal and free access to witness the delivery of justice.
Remote hearings are thus paraded as injurious to this notion because the percentage of people across the globe with access to the internet, are significantly lower.
The argument, therefore, is that people in such precarious condition are being unjustifiably disadvantaged from partaking in (or disrobed of their right to witness) virtual court proceedings.
So, in Nigeria where about 45% of the population do not have access to the internet, a significant proportion of the citizens are unjustifiably shut out from the judicial process when remote hearings occur.
Pretty strong argument, you might say.
But do you know that this most populous African nation, is also the poverty capital of the world, with more than 40% of its population living on $1 per day?
Can you explain how someone struggling to eat would spare cash out of the little he has, or the time he ought use to make more money, to transport himself to a courthouse and witness hearings in which he isn’t a party?
You are speechless, right? Yes, because the chance are slim.
Rather, it’s much probable that if such person has access to a smartphone and good internet, he can tune into a virtual courtroom and participate, while he still goes about his daily routine.
Cost-wise, this is much advantageous as a person can with a single internet subscription, tune into multiple virtual courtrooms, chat on social media, run banking apps, and get several other things done online.
Constitutionality and legality of virtual hearings
Another prominent argument tendered against remote hearing, is that it runs against the letters of most countries’ constitutions or isn’t in anyway recognized in such grundnorms.
Wondering how that should even be an issue too, right? If we don’t innovate, how do we move forward?
Even in judicial systems such as the Common Law where precedent is a stronghold, there are circumstances where some level of judicial activism and distinguishing, is allowed.
It’s important to note that the constitutionality argument is only peculiar to countries that are proud of the rigidness of their constitutions. Countries like the US and the UK that have flexible and unwritten constitutions respectively, have no issue in this regard.
Privacy and security concerns
Agreed, everything tech comes with privacy and security concerns. These innovative solutions were crafted by some person so, it is possible that some other person can manipulate them.
The recent hacking of the accounts of prominent figures on Twitter and the crypto scam perpetuated by the hacker, remains fresh on everyone’s mind.
Quick question: Did that incident make you close down all your social media account or trash all your devices? You know the answer, since you are reading this on one of those several devices.
Just like privacy concerns gave rise to the GDPR, CCPA, among other data privacy and security best practices, we just need to put together similar globally-accepted rules for virtual proceedings.
Head severance is never the solution to headache.
Recognizing Some Irrefutable Truths about Remote Hearing
Time to come out frank. There sure are some irrefutable truths about virtual hearing which we really cannot do anything about — they are what they are. Here are some of them:
Witness demeanor
There is unquestionably, a significant difference in virtual testimony and in-court evidence, since the latter gives the court a better opportunity to assess the defendant with their statements and actions.
Physical presence can serve important expressive functions, especially during cross-examination, ultimately leading to the elicitation of incontrovertible evidence.
Evidence recorded via video-conferencing may likely distort non-verbal indications like facial expressions, postures and gestures. For example, delayed streaming can stand in the way of identification of facial reactions being identified.
So, until we perhaps get a way around this con, remote hearing of witness testimony be ill-advised. And if we can’t do anything about it, courts might have to segregate aspects of a proceeding that should be held remotely and those that shouldn’t.
Disruptions
Disruption and delay preventing participants from joining a virtual hearing, disconnecting them half-way through a hearing or reducing the quality of audio or video, is an undeniable con of virtual hearings — especially when participants connect from different locations.
No matter what infrastructure is put in place or the level of preparedness, there’s always that possibility of something or everything going wrong.
While giving evidence or making your case, you could even have an emergency come up that demands that you abruptly zoom off such a proceedings — all of which never happens when you stand fixated before a judge as either a litigant or an attorney.
Our best bet is to just live with it and cope with it as much as we can.
Conclusion
From the response to this pandemic, it is evident that several changes, particularly the acceptance of virtual courts for trials, is in the horizon for justice dispensation worldwide.
An adversarial framework based on front-line or physical activities, when transitioned to the electronic domain, is bound to experience difficulties, particularly as most people lack access to the Web or some sort of digital literacy.
But we’ll only be deceiving ourselves if we don’t all recognize the several advantages that come with remote hearings.
As with all innovations, challenges are inevitable. What we can do is to look at each concern and address them as best as we can — not do ourselves a disservice by crying foul.
FAQs
What is a virtual courtroom?
Virtual courtrooms are physical courtrooms holding in a digital space. Judicial proceedings go on them like any other brick-and-mortar sitting, with participants joining from wherever they may be located.
Virtual courtrooms are formal courtrooms too so, all the usual court decorum, ethics, and protocols apply.
How does remote hearing work?
In remote hearing, courts hear disputes through audio or video conferencing. Judges sit in court and listen to submissions by attorneys who appropriately dress up and join from their various locations.
What is a Zoom hearing?
Zoom is a conferencing solution where people from different locations meet. Judicial hearings that thus take place on the app are referred to as Zoom Hearings.
Are virtual court hearings constitutional?
They mostly are — depending on how one chose to interpret the letter of the law or any enabling provision.
Ridwan Sharomi is a budding tech lawyer and freelance legal writer. He works closely with individuals and businesses, providing topnotch blog writing and ghostwriting services in the Tech and Legal niche.
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