Progress and tradition can co-exist in harmony within the legal profession - Karen Stachura

Court lawyers are very familiar with tradition, the legal profession is steeped in it, somewhat ironically. On one hand lawyers are the advocates of progress and development, but on the other, the legal world is renowned for doing things ‘the way it has always been’ – until 2020.

Karen Stachura is a senior associate, Brodies.

The Scottish Courts and Tribunals Service (SCTS), like many others, stepped up to the mark during the pandemic. It has been said that five years of IT development took place in less than five months, resulting in the virtual court being born. However, as with many things in the last year, it was born out of necessity rather than choice, and that has left it open to criticism and scepticism.

As the SCTS and legal profession now reflect on the changes that have transformed our current court systems, how will they shape their future? And to what extent will virtual courts live on?

From a client's perspective, there can be significant cost benefits to the virtual court. Travelling and waiting times have been vastly reduced. For routine hearings - other than a proof (trial) or debate - a lawyer can deal with other business while waiting remotely for their case to call, thereby reducing costs further. In cases where experts are required, the world is their oyster - no longer is geography a prohibitive time or cost factor.

But what about trials? Can justice truly be delivered with witnesses giving evidence virtually? Concerns have been expressed that reliability and credibility may be best assessed in person. Perhaps so, but while witnesses in a virtual court are not physically before the decision maker, they are always on view when giving evidence. Indeed, the camera arguably brings expressions, mannerisms and gestures into sharper focus, literally. There may therefore be greater opportunity for judges and sheriffs to assess the credibility and reliability of witnesses Indeed, the opinion of some judges in Scotland is that the virtual court makes little difference to assessing witness credibility.

That said, the virtual court does lack some of the physical cues and prompts that are often intrinsic in a traditional court. Body language is more difficult to gauge; there is less eye contact; subtleties and nuances are lost. But to what extent that has an adverse impact is, so far, unclear. It is also worth remembering that the virtual court is in its infancy, and its users are learning new skills to adapt.

Concern has also been expressed that witnesses may have someone else in the room influencing them while giving evidence. Other claims suggest that the comfort factor of being at home means witnesses may not treat proceedings with the same solemnity that they would in a physical court room. There may be merit in these concerns.

However, a witness can (though they should not) be coached regardless of where they are, and solutions could be devised to check if a witness is alone while giving evidence; in the US, witnesses can be asked at any time to provide a 360° camera view of the room they are in. Furthermore, being on camera the whole time while giving evidence is perhaps more likely to focus matters than detract from them. However, there is little doubt that the sense of gravitas and drama of a traditional courtroom is absent from the virtual version.

It seems that the strongest argument in favour of the traditional court is that it best serves the taking of evidence. It is worth noting though, that a small percentage of cases (excluding family cases) proceed to trial in Scotland’s civil courts. As such, it is only a small minority of cases where the traditional court may be more appropriate than the virtual one.

When deciding the future of the court system we should ask what has been lost by not having a traditional court, and what has been gained? As a result of the pandemic, and the technological advancements made, the profession, court users, the judiciary and SCTS have an opportunity to influence the shape of our future court system. Surely, the traditional and the virtual court can co-exist in harmony, maximising the benefits of each. To future proof our court system, collaboration and communication will be required among the legal profession, as well as transparency and training, to ensure all involved can provide the best service to those who need it.

Karen Stachura is a senior associate, Brodies.