The rise of the virtual court?
With public and economic life shuddering to a total halt during the pandemic, some industries are finding increasingly creative solutions to carry on.
For judges and lawyers, the virus poses a major obstacle to the bread-and-butter of their daily work: being in court. How do we maintain a functioning judiciary without courtrooms? The obvious answer is videoconferencing, or virtual courts. But as many will know, the legal world is not known for its willingness to set tradition aside and embrace new ideas.
In fact, it probably says a great deal about the world of law that doing business over Skype is regarded as something of a radical departure. But these extraordinary circumstances have seen courts move quickly to test their capabilities to conduct hearings remotely.
Test run
So how’s it going so far, and what can we learn from the first attempts at virtual courts over the past few weeks? David Knight, partner at Fieldfisher in London, says his team last week took part in what was, to the best of their knowledge, the first full English Court of Appeal hearing to be held remotely.
From a logistical point of view, his first experience of a virtual hearing week went “amazingly well”.
“We only had one hiccup—we lost one of the Lord Justices, but they were back on within five minutes,” Knight says.
Fieldfisher had requested an urgent hearing on behalf of a client who was looking to have a supplementary protection certificate, due to expire today, April 2, extended.
Whereas the lawyers initially were mostly concerned about the technology and logistics, Knight says that the judges were concerned with ensuring that a remote hearing could be considered to be ‘in public’.
The solution was to provide dial-in details for journalists and a link to a live transcript to anyone who requested it. That saved the potential technological and logistical hazard of having the hearing available to join to anybody.
Documentation was all circulated electronically via Dropbox in advance. Christopher Leung, associate at Fieldfisher, agrees that the hearing went “remarkably well given the circumstances”.
He said a trial run held the day before was particularly helpful in ensuring everything ran smoothly—”without that, it would have been more difficult”.
Of course, it’s not only the UK having to grapple with this problem. Nearly all of Europe has been in an effective shutdown for several weeks now.
Germany, another hotspot for IP litigation, has also been testing the waters with virtual hearings.
Cordula Schumacher, partner at Arnold Ruess in Düsseldorf, says that while remote hearings are permitted in Germany, they are nearly unheard of in practice. As a result, courts are only now beginning to equip themselves with the requisite equipment to hold remote proceedings successfully.
Philipp Roman Schröler, senior associate at Heuking Kühn Lüer Wojtek in Düsseldorf, predicts that in Germany, legal requirements and practical obstacles mean multiple virtual hearings may be difficult to get up and running.
According to Schröler, this is partly because there is “usually only one courtroom per court that is suitable for video conferencing”.
Germany also places a great level of importance on the principle of publicity and court hearings being open to all, he says. “This is a critical point, because it needs to be ensured that the court buildings and rooms, in particular the video-conference court room, remain open to an unlimited number of spectators,” Schröler argues.
So far, the Regional Court of Düsseldorf has led the way, informing the public that it is ready to go and has a venue set up with the necessary technology. Schumacher says that some other courts will need more time, but in principle, are open to the idea.
"I personally have not yet had this experience, but potentially one of my upcoming hearings will be virtual—this will be exciting," Schumacher says.
Assessing the witness
But what do early test cases tell us about the possibility of full, virtual trials? Are there limits to what the court can do remotely?
Katie Coltart, partner at Kirkland & Ellis in London, also had her first experience of a virtual hearing as a result of the crisis.
She reports that it went “very smoothly”, although in this case it was a very short, largely procedural hearing. She wonders how easy it would be for more complex proceedings, featuring witnesses and heavy loads of documents, to be held online.
“If you have simple, procedural issues that don’t require a lot of papers that is easier to deal with via a short Skype hearing," Coltart says.
"There are more challenges when you have the issue of witnesses and their evidence, but the court’s recent guidance positively says that some such cases may still be suitable for remote hearings," she adds.
Fieldfisher’s Knight says that he would be “very confident” participating in virtual hearings again in the future, but also has reservations about whether the full courtroom experience can be replicated via Skype.
“How would it work in a full trial with witnesses being cross examined? I’m not sure about that,” he cautions.
The issue of witnesses poses a particular challenge because in the UK, there’s a much greater emphasis on witnesses being physically present than in many other jurisdictions.
“Judges really like to see witnesses’ behaviour and demeanour, and no doubt some of that would be lost,” Knight says.
Perhaps the present crisis offers a chance to reconsider old traditions and whether live witnesses are something we can do without, given the circumstances.
“In Germany they put a very different weight on live witness testimony, much is done with documents,” Knight explains, adding: “They can often offer a full judicial service without needing to see the witness at all. But here, live cross-examination is a central plank of our litigation.”
Schröler agrees that live cross-interrogation is less of a feature of German litigation than written submissions, although he says judges still like to interview witnesses to assess credibility, factoring in body language.
In order to improve efficiency and avoid lengthy delays, the UK may need to adapt and look at different practices around live witness testimony from other jurisdictions in a bid to move more hearings online and get cases resolved.
Ultimately, this will require open-mindedness from both judges and lawyers alike. Early reports appear to be positive, but it is too early to say whether this will lead to full-scale, virtual trials. Perhaps though, it will cause lawyers and judges to wonder if the old ways aren’t necessarily best.
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