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Lawyers share remote hearing experiences under COVID-19

Lawyers share remote hearing experiences under COVID-19

By Karin Derkley

Courts COVID-19 Technology 

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Legal practitioners are being asked to share their experience of remote hearings and civil litigation during the COVID-19 pandemic to help researchers understand how remote justice is working.

Coordinator of the Remote Justice Stories Project, Monash University’s Australian Centre for Justice Innovation (ACJI) director, associate professor Genevieve Grant, says the intention of the research is to capture the experiences that lawyers, litigants, court and tribunal staff, media and decision-makers are having with remote hearings (online and phone) across the civil justice system.

The ACJI is partnering with New Zealand's University of Otago Legal Issues Centre on the project.

Professor Grant says the centre had already been looking at online hearings as part of its core teaching of law students well before the COVID-19 period. “We realised that this is the way that things were heading long before COVID-19 was something we knew about.”

The enforced remote hearings during the pandemic have presented a great opportunity to look at how the remote hearings are working, she says.

"Collecting this data now is important as courts and tribunals assess what is working, what is not and particularly what aspects of remote justice might be retained in the future," Professor Grant says.

“Being able to get people's accounts and stories through the project website and interviews is a really critical way for us to understand how this is working.”

Stories that have already been collected for the project reveal a variety of experiences and views about how well remote hearings are going.

One Australian lawyer who contributed to the research project spoke positively about remote hearings in the Federal Court of Australia and Federal Circuit Court of Australia in which they had appeared, one by phone and two via videolink. They were all a success, the lawyer said, "in that both parties were able to receive a fair hearing".

Because no paperwork could be handed to the judge in court, a bigger effort was made to ensure paperwork was submitted in advance of the hearing, he said. "This made the hearing go very efficiently."

However, another who had appeared as junior counsel in a five day Supreme Court trial that was conducted via WebEx and involved a number of witnesses and a legal team spread across three states, said the process was difficult.

"I would not describe the process as 'smooth'," the lawyer said. "Even if the technology had been perfect, I would still prefer to run a trial like this in person. It was an adequate compromise solution, but not 'the way of the future'!"

The lawyer said it was more difficult to sense the “mood” in the court room and of the judge from a remote location. “Emailing documents to a witness mid-cross examination and trying to get everyone looking at the same attachment is annoying and distracting."

Professor Grant says other stories submitted for the project have reported technology failures, "some easily fixed, but others resulting in proceedings being adjourned", as well as reduced opportunities for informal interactions between participants, and difficulties with cross examination and gauging the reactions of others in the hearing.

But others emphasised the convenience of online approaches, smooth experiences with complex matters, and said that fair hearings are being achieved, she says.

Professor Grant says the rate of uptake of remote technologies also varied across different lists or areas of practice. “Often that's a product of the comfort of the judicial officers who are charged with making decisions about what technology might be used and what case might be appropriate,” she says.

Remote hearings throw up particular challenges around witness examination, she says. “We've heard terrific accounts of the steps courts have taken to prepare parties and test the conferencing tools. Gauging how evidence is being perceived in the court when a trial is online is proving more challenging."

Practitioners who participate in the research can choose to have the stories published on the website (anonymously if they wish) or make it available only to the researchers. Practitioners can also register to be interviewed for the research.

Tell your story via the Remote Jutsice Stories website here.


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