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This article is written by  Suman Chatterjee Team LawSikho.

In a letter to lawyers, Judge Dennis Bailey of the 17th Judicial Circuit of Florida wrote about how some lawyers are getting lax in the new virtual judiciary system.

“One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers. And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

The legal world is upended by this recent public health crisis and while the courts are gradually going online, the question arises, “What next?” 

When urgent matters are being heard over Vidyo, lawyers and even judges are contemplating how this is going to affect the legal community as a whole.

In this article, we will look at what opportunities and challenges are going to be discovered, the good and the bad of it, and how it is going to play out in the short and long term.

How much have courts gone online?

The United States’ Bureau of Justice Assistance constituted a task force in 2007 to frame a strategy on how to tackle the judiciary system during a pandemic. Of course, India has never done such a thing, so we are constrained to look at what this US task force said.

Dealing with substantive legal issues and also modifying the legal procedure in a way that it ensures public safety and also keeps the judicial functioning intact is of paramount importance. The urgency of legal matters should be outlined clearly and prominently for it to be followed in a structured manner, without any confusion and prejudice. 

Unfortunately, India didn’t have a plan in place, and the only possible solution was to go into an almost full shutdown without further delay. 

And why not? Courts are inarguably one of the most publicly crowded places in the world (including India) and higher social exposure indicates a higher threat to the health of judges, staff, lawyers, litigants, and witnesses. 

But a total shutdown was impossible, so only urgent issues are being heard in the Supreme Court. 

In Indian courts, urgency is subjective, and can mean “bigger matters argued by big name lawyers”.

Some high courts—Patna, Guwahati and Kolkata—have followed suit. Civil cases and cases of smaller pecuniary value are being given short shrift which could be even more urgent from another perspective – that those who needed relief are poorer and are facing bigger problems. 

To top it, the lower judiciary is basically non-functional. No lawsuits are being filed and no complaints are being entertained during this lockdown. While litigation lawyers practising in the lower courts are sitting idle in their homes, a huge number of potential cases are piling up without any imminent remedy. 

Let’s just say, if it were to go on like this, the current lack of access to justice would cripple the tottering economy further and would probably lead to a drastic collapse of the social order. 

Thus, courts and tribunals are opening up online to deal with these challenges – because we cannot afford to keep them closed for much longer. 

In the absence of any well-defined rules and regulations, the shifting to the virtual world is taking place in a haphazard manner at the moment. 

I expect the situation to be sorted out in the coming few months. However, let’s see what is happening so far and how it has impacted the legal fraternity as well as those who knock to doors of the court for justice.

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Advantages

Social distancing and safety

The coronavirus outbreak can be considered the “once-in-a-century” pandemic, and social distancing is not a choice but rather a necessary condition. 

Face masks and gloves are only a preemptive measure but might not be enough if you keep travelling in public transport or breathe the same air as 100 other people in a crowded courtroom. The answer? 

Stay indoors. And the court must go virtual. 

When the courts work in the virtual world, social distancing is no challenge.

Given that many judges and lawyers are quite senior in age, their health should also be of paramount concern. Online courts really help to keep everyone safe. 

Full marks on this count.

Except if you are forced to visit court anyway for filing or even accessing online 

No transportation, higher productivity

Once upon a time, I had to travel 75 km to and fro every single day to appear before a certain lower court. It took me a total of 5 hours (-ish) to go and come back from the place. That’s uncalled-for wastage of 5 hours per day! I am sure, many lawyers had to undergo a similar experience in their daily professional lives.

Even within city limits, running around courts trying to be on time before a judge, despite massive traffic jams, that’s a big headache for every lawyer.

With the shutdown and the courts and tribunals going online, the need of travelling to distant or not so distant courts have been eliminated and those wasted hours can now be utilized in far more productive pursuits. That’s a blessing in disguise for many.

Ability to attend or appear in many different forums in a single day 

If you are a lawyer who occasionally flies from one courtroom to another during simultaneous hearings, while your junior often excuses for your absence at times, you now stand relieved. 

All you have to do is sit in front of your laptop, connect it to the internet and log in to separate meetings, conferences, and court hearings, without stepping an inch out of your house! Though there might still be timing clashes at times, it’s all about exiting one and entering another which does not take more than a few clicks!

Managing time is definitely much easier these days for lawyers.

This also means you can accept more matters than ever before.

Less time wasted waiting for matters to be called

Have you ever wasted your time sitting in a courtroom waiting for your matter to be called? I have – sometimes, even for the whole session until the judge rose from his seat. A complete day wasted, and there was no solution to it whatsoever.

The root of the problem is that you will not be able to reach the courtroom from your chamber, so you end up staying there nonetheless. You do ask your junior to wait and notify you when it’s almost time for the matter to be called. Sometimes, you do it yourself when you have no junior available at hand. 

In the virtual courtroom, this problem is nipped in the bud because you can enter and exit a virtual courtroom in a few seconds. If you find out that there are still two cases before yours is going to be called, all you have to do is mute the audio and get on with your work. 

Proceedings are on video, therefore documented – increased scrutiny 

Since the proceeding is being carried out via video conferencing tools, it is highly likely that someone may be recording it. Judges are aware of this. So are court staffers. And lawyers.

While travelling to a court and getting accepted into the court space seem like a challenge for many, virtual courts are often “open” courts where anyone and everyone can log in to watch the hearing live in action, an experience that no case summary or media report would match up to! Recently, in a court hearing in Kansas Supreme Court, over 3,500 people logged in to watch YouTube Livestream of a court hearing.

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Imagine when thousands are watching you live, you would be worried about saying or doing anything wrong even if you wanted to. 

The chances of undergoing scrutiny go up, resulting in a lower possibility of manipulation, corruption or untoward behaviour because you know everything is possibly being recorded by someone. 

Younger lawyers are getting more time from judges

Younger lawyers are often tolerated and not enjoyed, as per court wisdom. 

This is evident from the fact that while senior advocates are often allowed to speak for hours at a stretch, younger lawyers are expected to be brief and concise in their submissions and not to assume airs at all! 

Now if your opponent is a senior lawyer, he would bring in his own “style” while you would not. 

A sheer disparity but unresolved and unaddressed. 

However, when everyone is sharing equal screen real estate, the playing field is often evened out as per many experts. In such a situation, younger lawyers are due to get more time and importance from the judges and might be able to perform better. Don’t forget they are tech-savvier than the senior advocates too. More power to junior lawyers.

Disadvantages

Frequent technical glitches, connectivity issue

In the recent Speedtest Global Index, India ranks 128th for mobile broadband and 66th for fixed broadband. And that’s considering the BEST internet speed available in a chosen area of some city in the country. 

For the rest, the internet speed sucks!

Not only that, to be able to conduct video conferencing smoothly and efficiently, you would also have to have sophisticated digital equipment like standalone microphone, white lighting and a high-end laptop or a desktop computer. If you think you can do it with your 10-year old Pentium 4 PC, it’s not going to work. 

Something to think about. 

This could mean that a lot of lawyers and courts are having plenty of tech and connectivity issues while arguing their matters virtually.

Many lawyers are not comfortable with new technology

Add to the above, many senior advocates have crossed that age where they would love to tinker with new technological stuff as teenagers do. 

I myself have been using the same mobile phone for the last 4 years and worried about trying out newer phones and I am just 32. 

Let’s say that not everyone is tech-savvy and even with the junior helping you in setting the environment up, the lawyer might still find it hard to operate it during the initial stages. 

With consistent hardships in even muting and unmuting oneself (in Vidyo or maybe other apps too), many lawyers would end up frustrated and end up supporting the no-technology-in-courts movement sooner or later. 

Access to people without digital access is not addressed

Also, we tend to forget that as high as around 50 percent of Indians do not have access to the internet. This is despite having the 2nd highest number of internet users in the world.

One can argue that even a person without an internet connection can go to someone with such a connection to use it, which is definitely easier than going to a faraway court for a rural person. Still, the digital divide remains a big challenge for half of the citizens to access or understand virtual courts. 

I would daresay that a significant percentage of them, even having access to the internet through their phones, may not have access to the essential digital setup to attend the online hearings. 

However, this is a problem that is not very hard to solve as most state governments have introduced digital kiosks in the past across countrysides in order to give access to government services, and India has almost 100% broadband coverage in its territory. Government has also promised broadband access in every Indian village by 2022.

Lawyers are finding that they need different abilities to be effective in online hearing

Last but not least, online court hearings are not the same as standing in front of the mic with your opponent standing by your side, and the judge sitting before you, looking intently for what you have to say. 

You can throw your hands vehemently in the air, bring in some melodrama with queer face expressions, and infuse life into the courtroom with your secret antics, carefully sharpened over the years when the hearing is in a courtroom. 

However, now that you are seated on your sofa, in front of the digital screen, the atmosphere suddenly seems so different. It’s not like the court you are used to. 

You can’t see the reactions of your opponent lawyer. The judge seems less divine and more like a normal person (at your level, physically!), and here you are—the great Mr Lawyer cowered in front of that tiny laptop camera.  

The core remains the same, but the paraphernalia has changed and many lawyers are struggling to adjust.

What do you think?

I want to know what you think. 

You might be a practising lawyer. Or, you might be a legal professional.

If you are directly or indirectly involved with the Indian judiciary, I want to know what you feel about the courts and tribunals going online. 

Is it good? Is it problematic?

I want to know your opinion, and if we think it makes sense, we would even publish it on our blog in the form of a compilation of the best replies we get. 

Hope to hear about your thoughts.

All ears.

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