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Category: News & Announcements

Published: 16 June 2020

Remote Hearings: A Practical Guide

We live in very interesting times.  The coronavirus pandemic has turned society on its head, forcing all of us to change the way we live our lives.  Even the court's system – traditionally resistant to new technology – has been forced to adopt radical new processes just to keep the wheels of justice turning.

One key aspect of this has been the growing use of videoconferencing technology, and in particular Cisco Webex, in place of traditional, in-person hearings.  The process started in April 2020, with the Court of Session – Scotland’s highest civil court – beginning to hear appeals using Webex.  Criminal appeals and higher-end civil procedural hearings followed soon after.

In June 2020, we saw the first summary criminal trial conducted by Webex.  Summary criminal cases are less serious but account for over 80% of all prosecutions.  There’s no jury – the case is decided by a single judge, usually a sheriff.  Then, on 15 June 2020, another first: the first Webex family proof.  This related to a father’s application for contact with his children.  A proof, like a trial, involves witness evidence.  There’s no jury; the case is heard by a sheriff. 

The feedback from all of these experiences has been largely positive.  The technology – a system that has been widely used by companies for years – worked as it should.  Most participants found that, after a short time, they forgot about the technology and focused entirely on the nature of the hearing that was taking place.  The fact the hearing was virtual – being conducted remotely – was incidental. 

In normal circumstances, court buildings are places of social interactions.  Hundreds of people congregate at one place at the same time and are shepherded into small waiting rooms with limited airflow.  In an age of social distancing, that just isn’t appropriate.  Measures that allow the courts to function without the large numbers of people physically attending are a crucial part of the response.  Webex fits the bill perfectly.

There is huge potential for Webex to be used across the justice system.  Aside from summary trials and family proofs, we can expect to see a range of cases being conducted remotely, such as:

  • Child protection cases – where children are subject to social work involvement, there’s a need for the courts to make swift decisions about the grounds for state supervision and to deal with appeals against panel decisions.
  • Commercial cases – disputes between companies are subject to different procedures in the courts, including hearings by telephone conference. Webex allows for a more effective dialogue.
  • Fatal accident inquiries – evidential hearings to determine the causes of suspicious deaths tend to be subject to delays. Remote hearings could dramatically speed up the process, saving families additional anxiety and giving them much-needed answers.

So what’s actually involved in a remote hearing?

The Client’s Perspective

While social distancing remains in place – and that’s likely to be for some time to come – there will be limits on what the courts can do by traditional means.  Without remote hearings, that could mean extensive delays in bringing cases to a conclusion.  Delays help nobody.  Remote hearings offer the chance to progress cases and secure justice.

If a remote hearing is fixed in your case, speak to your lawyer about it.  They should be familiar with Webex and be able to tell you how it works.  Rather than speaking to your lawyer over the phone or in person, arrange to have a meeting by Webex – this will give you a much clearer idea of what’s involved, and will also allow you to test the connection.

The technology isn’t complicated.  All those who are involved will be emailed a link; joining the hearing is as simple as clicking on that link at the appointed time.  Participants just need a laptop (with a built in camera and microphone – most have these), a smartphone or an iPad.  A Webex app can be downloaded, but it’s not essential.  Reasonable quality wifi is important.  It’s best to stop others in the house from using excessive amounts of data while the hearing is ongoing. 

When in the hearing, each participant’s face will be seen in a small box on the screen.  The judge will ensure that everyone can see and hear what is going on.  The person who is speaking – such as a witness – will probably appear in a larger box.  The judge can mute others if necessary. 

It’s possible that others will be watching the hearing, beyond those who appear on the screen.  Courts are generally held in public, and remote courts are no different.  What you say and do may be seen by others.

It’s important to remember that this is still a court hearing.  Dress smartly, think about what others can see behind you, and be polite when speaking.  You should have already worked out a way of communicating with your lawyer, possibly by text message.  Use that where necessary, but remember your lawyer is doing a difficult and important job; try not to be too distracting. 

The Lawyer’s Perspective

It’s likely that most lawyers will already have had experience of videoconferencing, but if not, try to get some.  Webex has a free option which allows you to host meetings (with some limitations).  Try it out, and become familiar with the process.  The system is very simple to use, but it’s best not to use it for the first time when conducting a hearing.

Think about how you present when connecting.  Remember to wear proper court attire (including a gown if appropriate).  There’s no need to stand, however.  Look at the image of you – what will others see (often in better resolution) behind you?  A neutral background is best.  Try not to point the camera towards direct sunlight, as that will make it difficult to see you. 

While the court has the power to mute those who aren’t speaking, that won’t necessarily happen.  Remember that what you say can be heard by others.  Ensure that you’re in a room where nobody else will come in.  Try your best to avoid the kids coming in, or the dogs barking.  Learn to use the mute facility – both to turn off your sound when not speaking, and to turn it on when you are. 

Remote hearings are often quite intense, more so than in-person hearings.  Try to be sufficiently rested so you can keep up your concentration.

Have a method of communicating with your clients, such as by text or email.  Ideally use a different device from the one that you’re connecting to Webex with; mute the former but keep it close to the latter. 

Your client will expect you to be calm, assured and in control.  Proper preparation should make this easy.  However, if you lose your place or encounter difficulties, say so.  What matters is that the hearing is conducted fairly and justice is done.

Stuart Munro is the managing partner and head of criminal litigation at Livingstone Brown.  He’s a member of the Law Society of Scotland’s Criminal Law Committee and Technology Law & Practice Committee.  He chairs the Society’s criminal procedure working party, which is looking at how to restart the criminal courts following the lockdown and is a member of the Lord Justice Clerk’s working group on resuming solemn trials.

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