Remote hearings are here to stay – but how often should they be employed? - Scott Clair

The question of what kind of future we want for civil litigation in Scotland was the central thrust of the recent Judicial Institute conference, entitled “Civil Business after Covid”.

Scott Clair is an Associate, Balfour+Manson​​​​​​​​​​​​​​

The conference featured a range of fascinating talks from both practitioners and senior members of the judiciary, including addresses from the Lord President and Lord Justice Clerk as well as from the legal futurist, Richard Susskind. It would be fair to say there was a degree of consensus evident that remote hearings have generally worked well for procedural business, at least by way of necessary substitution as a result of the restrictions imposed by the pandemic.

The prospect of remote proofs was far more contentious. How can the decision-maker assess a witness’ credibility or reliability over a video call? How can it be ascertained that they are alone? How might the advocate pick up non-verbal cues from the bench? How does the solicitor tug counsel’s gown? Can the solemnity and dignity of the court process really be maintained?

Yes, witnesses are able to be more relaxed – but frankly, should they be? How can the court keep control of a prevaricating or contemptuous witness? And crucially – is the prospect of many more cases achieving settlement being lost by the absence of the client/opponent being confronted with the door of court or the witness box?

All of these concerns and more were discussed. The overarching question was what kind of future do we want for our court system? Be it almost entirely virtual, a complete return to the status quo ante (hopefully without the suitcases of papers, at least…!), or a mixture of the two.

There were also some sobering statistics too – such as the fact that globally more people have access to the internet than access to justice, together with some predictions more akin perhaps to an episode of Black Mirror than at home in Parliament House.

It was hypothesised, for example, that as early as the end of the decade there will be widespread availability of artificial intelligence (AI) which will be able to predict with near-certainty the outcome of civil cases. Whilst technology such as this can never hope to truly substitute the humanity and empathy required of a human decision-maker, could it be a beneficial complement to lawyers, for example advising a client on prospects of success, if the likely outcome can be predicted with greater certainty?

Professor Susskind, at least, was certainly of the view that rumours that we have reached the ‘endgame’ of technological modernisation have been greatly exaggerated – we are, he said, just warming up.

In the desire for greater innovation (and perhaps even automation), however, we must not lose sight of the human costs. It was noted that amongst many judicial office holders and court staff, job satisfaction and morale was down. With increasing digitisation and fewer appearances at court, will the lawyers of tomorrow, for example, really get to know each other in the same way as those of us who trained and qualified before the pandemic have been able to? Would an almost entirely digital future risk reinforcing ‘digital poverty’? And who present could forget the incredibly poignant anecdote of one judicial panellist who recounted being asked by a parent “Are you really going to take my baby away over an iPad?”

All agreed that if the pandemic has taught us anything, it is the fundamental importance of human contact and interaction. Further, we lose that completely at our peril. Our tradition of oral advocacy is rightly revered. It was refreshing to see that the view from the bench was that we have seen the very best of the profession during the pandemic. The old adage that lawyers are conservative and unsusceptible to change is no longer – entirely, at least – a sustainable one.

It seems clear that virtual hearings are here to stay. The question that requires further consideration is – as we emerge from the pandemic, do we want to see these substitutes as simply that, as complementary to our existing procedures, or as panacea? We are certainly not in Kansas any more – but do we really want to go back?

Scott Clair is an Associate, Balfour+Manson