Court Hearings and Covid-19 – Another View

Many of the concerns about the use of technology in Courts raised by Dr. James Farmer QC in his blogpost “Court Hearings and Covid-19” have been ventilated before. Rather like the Chief Justice his starting point is that technology compromises certain fundamentals that underpin our adversarial system.

The major premise of the post is that the use of virtual hearing technology – even if it were reliable which he claims it is not – is inherently unable to provide a top quality judicial process in certain categories of cases. Mr Farmer refers especially to lengthy complex trials, Court of Appeal Hearings and Supreme Court hearings.

His post notes that the Court of Appeal and Supreme Court issued a Remote Hearings Protocol providing for virtual hearings (Farmer uses the adjective euphemistically but the reason for that eludes me) Remote (or virtual) hearings are provided for during the various Alert levels and I recognise that this type of hearing will not be appropriate in all circumstances.

What critics fail to recognize when the issue of online courts or remote\virtual hearings is raised is that the proposals do not represent a shift away from what could be called the normal adversarial type of hearing. Rather, virtual or remote hearings provide another means by which justice may be delivered.

From the outset I agree, as I have said, that virtual or remote hearings may not be ideal for every type of case. But there are some cases for which they will be ideal. It is completely unnecessary for counsel to trail across town from their various offices to personally attend a pre-trial conference hearing. These have been done via teleconference for many years as Dr Farmer observes.

That the technology exists to allow a video appearance may enhance the process and allow for an additional nuance that is absence in a voice-only communication. That some attempts to engage in video conferences have encountered technological difficulties is to be expected in the early use of technology.

In my view the fact that Covid-19 has forced the Courts to utilize video technology more extensively beyond the use of the dedicated AVL system is an indictment upon lack of planning and innovation. These tools have been around for a while. They should have been deployed, used and had the rough spots smoothed long ere this.

The importance of process still remains in the virtual hearing. Although the participants may not be in the same physical or geographical location the hearing itself is centralized in that all parties can see one another and the exchanges that would take place in the same location still take place in the virtual space.

Openness is straight forward. Cases can be live streamed as was the case with the 9th Circuit Court of Appeals argument in State of Washington v Trump. In that case there was no courtroom. The judges were remotely located as were counsel. The audio of the argument was livestreamed. There were over 130,000 in the online audience – a few more than could sit in the courtroom in San Francisco. Similarly in New Zealand the arguments in the High Court in Ortmann v US – the Dotcom extradition case – were livestreamed on YouTube subject to certain directions from the Court. I think that we can safely say that there are technological solutions to preserve the openness of virtual hearings.

The importance of the “day in court” is present in the virtual hearing. Is it really necessary for all the parties and their witnesses to travel from their various geographical locations to a large, imposing and predominantly symbolic building, wait around for an ill-defined period of time to be heard.

The words “day in court” have become part of the popular lexicon but in fact represent another concept entirely and that is the wish, desire and indeed right of litigants to be HEARD. The importance of the day in court is the Court hearing – it is not called a hearing for nothing – and the words “Court hearing” in my view more correctly exemplify what the process is all about rather than the emotive use of the term “day in court”.

A further reality of the Court hearing is that what takes place is not an elegant forensic intellectual exercise, although it may be for some, but an process of information exchange and evaluation. In the final analysis that is what happens when client communications instructions, when a lawyer looks up a statute or a case, when that same lawyer provides advice to the client, when a lawyer files pleadings or submissions, adduces evidence from a witness or makes an argument in Court to the point when a Judge delivers a decision based on the information communicated.

In the past the nature of that process has been determined by the available technology. Pleadings were originally prepared by scribes but later were provided in typescript when the technology of the typewriter became available. Law reports did not exist until Plowden’s Commentaries in 1571 and before then the “reports” were handwritten notes circulated among coteries of lawyers. It took some time for reliable reports to be made available per medium the technology of the printing press. The photocopier has had an impact making it possible for multiple copies of papers to be provided along with voluminous attachments and cases, often to the dismay of the Judge. The mobile phone means that lawyers are available to clients 24/7 rather than Monday to Friday, 9 -5.

Yet despite the advances in communications technologies made available by developments in the Digital Paradigm, lawyers and judges seem unwilling to adopt and adapt to the new communications environment in the Court process and use new and innovative ways of doing what the job is all about – communicating information.

But in saying this I return to my major premise – not all cases are going to be amenable to virtual hearing tools.

There are some more fundamental issues that need to be considered – perhaps a little more significant than the image of the Court as a community centre or the idea that the only way we can achieve justice is by the physical presence of everyone in the same place at the same time.

The first – which has been highlighted by the Covid-19 crisis – is that of health, safety and associated with that, convenience.

Court houses are inherently unhealthy places to be – this before Covid-19. Large groups of people, many of whom are not able to afford medical care and may have communicable complaints or illnesses, are gathered together in waiting areas or courtrooms, counsel who must interview clients or take instructions in close quarters, jurors who are seated close to one another for extended periods of time – although I concede that jury trials of necessity must be in-person at this stage.

The convenience aspect, especially for busy lawyers in the District Court, has been exemplified by the use of remote hearings for administrative or routine matters which might earlier have required an appearance at several courts in, say, the Auckland region, but which can be dealt with expeditiously by a remote hearing where counsel does not have to leave the office. All “appearances” have been expeditiously completed in a morning – no travel involved.

A second aspect of the use of technology in Courts, highlighted by the Covid-19 crisis but not referred to by Dr Farmer, has been the development of ad hoc electronic filing solutions. I have referred to this in an earlier post.

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

As I have said, ad hoc e-filing solutions involving the use of attachments to emails, and, as proposed by the Defence Lawyers Association, the use of a dedicated email e-filing address, have been developed.

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offered in my previous post and which I repeat here is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

Caselines involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper or PDF files on USB sticks that accompany Court proceedings. Caselines enhances the gathering and production of evidence during the course of a hearing.

It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

A third aspect of virtual or online hearings is that of relevance to users. I have written on this aspect in an earlier post, but what I said then bears repeating.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19 and its aftermath which will be with us for some considerable time..

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot” or remaining wedded to archaic business models because they are what have been used is the past and fulfil some imagined level of near perfection.

We need to ensure:

a. Public confidence in the system; and

b. Associated with that a recognition that Courts are responding effectively to the crisis; and

c. That the solutions offered are relevant to present and future circumstances.

I shall expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants. 

Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants.

It may be considered laughable or at best quaint that the court should be a place where the requirement to be physically present for the disposal of court business, particularly when there are other communications systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant.

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts were closed to members of the public whose presence is not required for the business of the Court.

Covid 19 – whatever the Alert level – presents us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us in part to meet that challenge.

The tools and means are available. They can be added to and become part of the processes that are important in the justice system.


Access to Court Records

In November 2011 the Center for Legal and Court Technology at William and Mary University, Williamsburg, Virginia, in association with the National Center for State Courts and the Administrative Office of United States Courts held the 8th Conference on Privacy and Public Access to Court Records.

Williamsburg is a lovely town, both a “University Town”, with the venerable William and Mary as the University focus, and a historic area – a combined restoration and conservation approach.

William and Mary College

William and Mary College – Wren Building

Colonial Williamsburg Courthouse

Colonial Williamsburg – Rail Fences

Some of the buildings have been reconstructed. The 1773 Public Hospital is an example, and this was the main venue for the Conference.

The 1773 Hospital

A refurbished historical asylum, do I hear you say? Although there is a re-creation of hospital conditions, the greater part of the building comprises a museum and an excellent Conference auditorium. It is also close to the National Center for State Courts and William and Mary Law School in which is located the remarkable McGlothin Electronic Courtroom and the Center for Legal and Court Technology.

I was honoured to be invited to present a paper on the New Zealand experience in this area. The paper was well received and there was considerable interest in the way in which the issue was dealt with in the absence of the context of the First Amendment to the Constitution of the United States and the ability of the press to report on court proceedings. By the same token, a number of Federal Courts and the US Supreme Court in particular do not allow cameras in Court whereas in New Zealand there is a specific media policy that allows this as long as there is compliance with media guidelines.

My paper, a copy of which is at the end of this post, sketched the approach in New Zealand to access to Court records. Despite an examination of the issue by the Law Commission in 2006 in its report entitled Access to Court Records, little legislative action has taken place apart from the introduction of the The Criminal Proceedings (Access to Court Documents) Rules 2009 which remedy some of the perceived access problems as far as criminal court records are concerned. However, the current rules relating to other court records are drawn from a variety of different sources, are not always consistent, clear nor easy to locate nor are they comprehensive.

There is a significant gap in the 2009 Rules. They do not cover District Court summary proceedings. This has caused some concern, because it could well be that a different process could apply to different criminal proceedings depending upon whether they have been laid summarily or indictably or, of course, where the accused has elected trial. The issue is of special interest (and no doubt concern) to the news media who routinely seek permission to access court files to obtain background and material for their reportage of court cases.

The difficulty, however, has been addressed in a case decided late last year. (Ministry of Economic Development v Feeney [2012] DCR 257)

The application arose after the summary trial and acquittal of a number of directors of Feltex Ltd. The Ministry of Economic Development sought access to the Court file to obtain copies of  a transcript of evidence and written statements that had been produced during the hearing for the purposes of civil proceedings in the High Court. The application was opposed.

The grounds of the opposition were that the proceedings were not “criminal proceedings” as defined in the Criminal Proceedings (Access to Court Records) Rules, and that the notes of evidence in the District Court were in the possession of the defendants and were accessible by discovery.

As to the first ground of opposition,  Chief Judge Jan-Marie Doogue held that  the Criminal Proceedings (Access to Court Records) Rules did not apply because the proceedings were summary proceedings.

The relevant part of the Rules defines a “criminal proceeding” as

 ”a proceeding brought against a defendant—

(i) that has been commenced by information in form 2 of Schedule 2 of the Summary Proceedings Act 1957; or

(ii) in which the defendant has, under section 66 of the Summary Proceedings Act 1957, elected to be tried by jury; or

(iii) in which a District Court has, under section 44 of the Summary Proceedings Act 1957, declined to deal summarily with the offence”

The effect of this is to exclude all summary criminal proceedings from the operation of the 2009 Rules.

There had been earlier examples of what Her Honour referred to as a “legislative blindspot” in the 1974 Criminal Proceedings (Search of Court Records) Rules and after considering the way in which the High Court had earlier approached the problem, and after considering the nature of the inherent power possessed by the District Court,  held that the Court has an inherent power to effectively administer its statutory jurisdiction. Such power was sufficient to order access to Court documents in criminal cases that fall outside the operation of the Rules. Whether the exercise of that jurisdiction was proper in the circumstances should be assessed by analogy to the criteria set out in the Rules.

She then went on to consider the provisions of Rules 13 and 14 which contain the procedure and the remedies that a Registrar or Judge may grant, and, importantly, set out the provisions of Rule 16 which sets out the matters that must be taken into account in considering an application.

Rule 16 provides:

“In determining an application under rule 13, or a request for permission under rule 8 or 9, or the determination of an objection under those rules, the Judge or other judicial officers or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:

(a) the right of the defendant to a fair hearing:

(b) the orderly and fair administration of justice:

(c) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(d) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:

(e) the freedom to seek, receive, and impart information:

(f) whether a document to which the application or request relates is subject to any restriction under rule 12:

(g) any other matter that the Judge, other judicial officer, or Registrar thinks just.”

In the instant case Her Honour held that sub-regulations (b), (c), (e) and )(g) were relevant, considering that the fair and orderly administration of justice supported access to documentation  to the extent that the information contained therein might aid in the disposition of the High Courtt case. Privacy issues did not attach, because the District Court proceedings were conducted in open court, and that the freedom to seek, receive and impart information operated in favour of allowing access.

Importantly Chief Judge Doogue observed that sub-regulation (d) is concerned with media access to the Courts, and would be of importance in considering any media application for access to Court records. Each case will, of course depend upon its own circumstances as to the weight that an individual Judge or Registrar attaches to each of the criteria in considering applications.

At the moment, Court records are paper based. As I observe in my paper, the situation may well require revisiting when Court records are digitised, for the properties of digital technologies are quite different from those of the print or paper paradigm.

But discussion of those properties and their wider implications will have to take place on another day.

A copy of my paper may be found here:

The IT Countrey Justice