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Unexpected evolution of hybrid hearings

Monday, July 13, 2020 @ 12:32 PM | By David Jackson

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David Jackson
The COVID-19 pandemic forced courts around the world to close their doors and drove a rapid shift to virtual working, with thousands of court hearings taking place via videoconferencing using digital court documents. The result? The world’s largest experiment in digital justice. Now as courts across the country consider how to reopen, a hybrid model is emerging in which courts conduct a mix of virtual and physical hearings. Lessons learned from this huge international experiment will help to shape a secure and sustainable model for future working in the courts.

Court experiments with virtual hearings, despite minor teething problems, have been a resounding success. Now, courts and counsel are looking at what has worked so far and what lessons can be learned. The adoption of virtual hearings was driven by courts that could not suspend proceedings — notable successes have been child protection hearings in England, special educational needs tribunals in California and in Canada, insolvency proceedings in Alberta. Leadership came from Bennett Jones LLP, which moved very quickly to digitize the urgent hearings in the Dominion Diamond Mines restructuring. Not only did virtual hearings prove the salvation for many courts, but many judges, lawyers and courts discovered that virtual working introduced efficiency gains and time saving.

Unfortunately, many courts in Canada were caught out by the crisis. Court staff who were unable to access courthouses were equally unable to work from home, finding that IT systems were all based on-premise at the courts, with no provision for dial-up access and no stock of secure laptops staff could use. Proceedings ground to a halt and many courts now face backlogs that will take years to clear. It remains to be seen whether and how courts will reinterpret Jordan timelines in the light of the huge difficulties justice agencies will face to clear these backlogs (R. v. Jordan 2016 SCC 27). Expect some serious challenges in the months ahead!

Looking forward, courts and their IT managers must accept that some element of virtual working will be an essential part of the future mix so that backlogs can be addressed quickly. And which IT manager will now be brave enough to insist on building local tools for evidence management and presentation, when cloud-based solutions exist and have proven their worth to support business continuity? Lawyers, whether civil litigators or criminal prosecutors, have a critical role to play and an opportunity to shape the future. They can, and should, build on pre-COVID experiences of electronic trials, such as the 2019 Hutchison trial in the Supreme Court of British Columbia.

The future will see many short hearings, for instance case management conferences and resolution discussions, conducted virtually. Conference tools such as Zoom and Teams have proven highly successful and many courts have developed effective methods for such hearings. However, handling evidence files has proved more difficult. Early on, judges especially began to complain that being expected to handle multiple PDF documents, dropped into a cloud folder store, or attached to e-mails, causes particular difficulty.

England’s Civil Justice Council recently noted that “problems with the creation of and access to the documents related to the hearing were a commonly-reported cause [of frustration]. Problems reported with documents included missing bundles, judges not receiving files, people having different files or not being able to locate them. Respondents reported that electronic documents could be difficult to use in practice, due to being provided in several different parts or not being hyperlinked appropriately for easy navigation.”

Solving the problem of sharing evidence digitally is one of the key challenges remaining to allow sustainable hybrid solutions to evolve. Digital solutions must ensure that virtual hearings are easy to follow for all participants, regardless of their physical location and therefore must ensure all participants have access to the same version of evidence. The goal is to deliver hybrid approaches that are cost effective, easy to use and secure.

Even where courts are agnostic about specific solutions, they will surely begin to impose a basic framework of minimum standards — such as requiring properly hyperlinked indexes and effective document presentation tools, rather than allowing a “document dump” of disordered electronic files. Judges will insist that evidence filings are fully searchable and provide easy to use annotation tools. Courts will insist on scalability, preferring solutions that handle large case volumes and can be trained and rolled out easily. Finally, security will emerge as a major issue too, and courts will insist that solutions offer granular permissions-based access and deliver proper audit trails.

The COVID-19 pandemic has been a watershed moment for digital working in the justice community. Technological advances that for so long seemed impossible have been embraced, often with enthusiasm, in a few short weeks. The legal profession — already much more digital than the courts — is well placed to offer leadership. The Remote Hearings Guidance developed by Ontario’s joint e-hearings task force is an excellent example. Across Canada, lawyers should be seeking out the best approaches and presenting choices to courts to help them realize these new ways of working.

David Jackson is senior vice-president, business development for CaseLines. Based in Washington D.C., he is a member of the Courts Advisory Committee of the Integrated Justice Information Systems Institute in the U.S. Previously he led the digitization project for England’s 78 criminal courthouses.

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