I’ve been watching the sudden outbreak of enthusiasm for online court hearings among the legal profession with a mixture of incredulity and rising concern.
Incredulity, because as an information technology expert working on technical cases with (theoretically) technically aware lawyers I still spend a good deal of time cajoling lawyers into the 20th century (that’s not a typo, I still get sent ‘electronic’ documents that are scanned images of paper copies of Word files). Concern because I spend much of the rest of my time explaining to my more technically enthusiastic legal colleagues (and often their clients) why the latest IT breakthrough has turned out to be an expensive white elephant.
Before the online court outbreak turns into an irreversible pandemic I think people need to listen, and listen hard, to the voice of the people who really matter in the legal system. And for the avoidance of doubt, I mean clients and witnesses, not lawyers!
Over the course of the last 20 years I’ve given evidence 7 times , which is not many, but it’s still many times more than most factual witnesses. I’ve watched dozens of professionals give evidence and chatted with many if them after the event. Without exception they say that it is one of the hardest things, often the hardest thing, they have ever done. These are well briefed, intelligent articulate professionals giving evidence in fairly dry, document heavy, civil litigation. If they feel like that, how much more difficult must it be for people involved in cases that will make or break their lives or family?
In all that time no one has ever asked me, or any witness, ‘how was it for you?’, ‘ could the court have made that easier for you?’. From time to time I’ve seen a judge intervene when a witness is obviously struggling, and of course counsel can object to questions, but they seldom do. When support for witnesses is so thin on the ground in a normal court, my worry is that the psychological distance and other limitations of online courts will put witnesses at such a disadvantage compared to lawyers that there will be a serious miscarriage of justice.
Giving evidence online will be a completely different experience to the happy, smiley video conferences that have suddenly become all the rage, so to give some substance to my concerns here are few issues based on my experiences of normal courts that I predict will have a significant (though not always negative!) impact on witnesses in online hearings.
Can you see that document?
An online hearing means an online bundle. For those that haven’t experienced it, this means counsel give a reference to a specific page which is brought up on the screen for the witness, who (unlike everyone else in court) has no ability to scroll up and down, zoom in or out, or look at the document title and date. It is far too easy for counsel to flip randomly around timelines and topics leaving the witness answering a different question to the one that has been posed or simply becoming confused. Of course the witness can ask to see other parts of the document, but in an online hearing will they feel sufficiently support to do that, and will their legal team realise when they need support?
How many screens do you have?
Of course the obvious answer to the above is to give the witness a second screen with access to the bundle and proper access to documents (TCC please take note!). Then they can see the document and the people they need to talk to, but in an online court the witness can’t see who’s in court unless they have Zoom or Skype or whatever also on their screen. To do things properly and fairly they really need 3 screens, or one large screen (with the online court headshots & chosen document) and a second screen for their own document review. The chances of most witnesses having access to a suitable setup at home is slim and few offices will be suitably equipped, which means the client will have to pay for the equipment and installation and the witness will need to go somewhere to give evidence, which starts to erode the cost benefits of the online approach.
Are you sitting comfortably?
Assuming the witness has access to the screens and technology they need, the ability to give evidence from the comfort of your on office is probably a benefit to witnesses. Certainly far better than trying to juggle folders in a witness box designed for a standing witness, as happened to me recently. What will be much more difficult is picking up on the visual and body language cues that tell you how what you’re saying is being received. And it will be impossible to make eye contact with someone who is just one of many faces on your screen. That is disconcerting enough when you are talking with people you know in a small group, I struggle to imagine how it would feel under cross-examination.
Who else is there?
For a witness the very public nature of a trial comes as something of a shock, as does the concept of purdah. But at least you can see who’s there, even if a gang of students trooping into court and then swiftly out again when they realise how boring you are is a little off-putting. Similarly, the court can’t police purdah but the simple fact of everyone’s lawyers milling around makes it relatively easy to maintain. If anyone can access the hearing, as they should because it’s a public event, will we wind up with 100’s of faces on the screen, will there be a limit? And how will the court know who is in the room with the witness, maybe behind the webcam?
These are all questions that we will learn more about very shortly and none of them are reasons to stop. Rather what we do need, very urgently, is to make sure that everyone’s experiences of online courts – not just lawyers and technologists – are canvassed and fed into the system to make sure that if or when online justice becomes routine it is also fair and just.