Necessity Not Evangelism

I saw a tweet yesterday from Judge Itis (@itisjudge) complaining that Professor Susskind was ‘pontificating’ in the Financial Times about remote hearings.

https://twitter.com/ItisJudge/status/1258735590738219013?s=03

It piqued my interest so much that I went and subscribed to the FT again (didn’t it used to be free?) to see if he was just griping unfairly or if he had a point.

When i googled ‘susskind financial times’ i was taken straight to the article. The headline seemed reductive. But, knowing that Susskind won’t have written the headline, which will have been a headline writer’s distillation of the article, I wondered if the article presented as simplistic a view as the headline writer had thought it did.

That headline was :

Covid-19 shutdown shows virtual courts work better

Legal access improves and justices have not harrumphed at the change
[Update : forgot to include the link to the piece. Here it is [£].]
Anyone who thinks that the way courts have worked in recent weeks can be characterised by the single blanket descriptor of ‘better’ has not been paying attention. Astonishingly, Susskind does actually seem to hold that view.
I don’t suggest, by the way, that things have been universally ‘worse’ either – some aspects have worked surprisingly well. But many things have been slower, more difficult, less fair, less effective – and less humane. And they also aren’t sustainable – as Judge Itis has been pointing out for some time in his tweets on the impact on judicial health and wellbeing. Whilst things are being refined and improved, what we are all discovering (judges, lawyers and clients) is that remote hearings, whether video or phone, and regardless of platform, are just more tiring on the brain and eyes and you can’t work so fast or for so long. An inconvenient fact.
The article starts by a description of the successful adaptation of the US Supreme Court. Although I am not an expert on the US Supreme Court I am going to go out on a limb and suggest it is better set up and resourced than Bloggshire County Court and that there may not be a useful comparison. I acknowledge though that Susskind’s point is one of potential and his vision is one of wholesale reform and investment to achieve that. But I think we all know that investment is not coming. Let’s face it, Bloggshire County Court does not even have running water (except that which is pouring through a hole in the roof and into a bucket in counsel’s row) – and that was before the lockdown trashed our economy.
This is the first paragraph though, that really struck me :
This rapid uptake of remote courts prompts several fundamental questions. Is court a service or a place? Do people really need to gather together in buildings to settle legal disputes? Until a few weeks ago, most judges and lawyers rejected the idea of non-physical courts, denying that remote hearings could be fair or even technically feasible. I used to think that high cultural barriers meant it would take a decade for courts to embrace technology fully. Then the virus came, courts closed, and it only took a fortnight.
Susskind elides practical changes borne of necessity with a change in view regarding fundamental questions. We haven’t ‘fully embraced’ fundamental changes to our system of justice. We’ve had to make it work as best we can because we had to do SOMETHING. We are still working it out. We are finding some aspects are more do-able than we thought, but that many are harder than could have been predicted – in spite of huge amounts of investment of time and energy by individuals across the system. We are all very aware that the consequences of these changes are utterly unknown – so the sensible amongst us are not drawing any firm conclusions just yet. We are all learning and adjusting our views as we go.
Susskind says though that,
Anecdotal evidence indicates that most remote hearings have gone well over the past month. Last week, in England and Wales, more than 80 per cent of the country’s court and tribunal caseload was handled remotely, without reported mishap.  
He is not reading the same anecdotal evidence as I am. And, anecdotally, my experiences are not a match to this. What about the Family Justice Observatory Rapid Consultation report which shows a distinctly mixed picture, including some good practice and some very worrying features? What about the blog posts on The Transparency Project blog, giving granular and informative account of the actual experiences of those involved? Not all disastrous for sure, and we can certainly see that we may have been overly cautious about remote hearings before the outbreak – but ‘without reported mishap’? Quite apart from the glib choice of the word ‘mishap’, is he serious? He needs to attend some Family Court hearings. Is it a ‘mishap’ if a parent is too distraught or confused to be able to follow what is happening in an emergency hearing which results in their baby being taken away? More apt than ‘mishap’, would be the word ‘injustice’.
Part of the context, by the way, to the historically quite widespread resistance to the various schemes to introduce remote hearings, is the equally widespread perception that there is an agenda that is overtly or covertly push push pushing remote justice as the way of the future, and that this agenda is driven by economic incentives to cut costs and make efficiencies at the expense of those actually working in or experiencing the system. To push reform even where it may not serve the interests of fairness rather than efficient process. Whether that perception is right or wrong, when the technology adviser to the LCJ writes this sort of rose tinted PR piece it feeds into those understandable anxieties. From someone on the ground, it feels as if Susskind is describing some sort of alternate reality.
In fairness to Susskind he does say that there is a need for further evaluation :
Overnight converts now suggest we should never return to the old ways. Yet this massive and unscheduled pilot scheme has produced some rather haphazard innovations. So systematic analysis of the experience is needed first. Before any court buildings are closed for good, we must be confident that justice can continue to be delivered online, reliably and transparently.
I don’t know about you, but the framing of that reads to me as if in Susskind’s mind it’s a questions of WHEN courts close and WHEN we move online for good rather than IF?
For me the question is both the extent to which we CAN really sustainably, fairly, and efficiently use remote justice as part of our ‘Smorgasbord’ of ways of delivering justice (to borrow a contemporary phrase) – and whether we SHOULD have as our overarching objective a move away from buildings and people and human interactions as the backbone of what we call justice.
On that last question I do have a pretty firm view – we will ALWAYS need courts, even if we can now see that we could sensibly begin to hold more of some sorts of hearings remotely in future. In coming months we need to keep very closely in mind the human side of what justice really means. We need to think of justice as something that has profound power to change lives, not just a process or a machine.
And what we need as an absolute priority is proper research and evaluation (based on proper data), proper consultation with ALL stakeholders and a system that listens to what those stakeholders are saying. We have undoubtedly been shown that more was possible than we thought, and we have been shown that I.T. has more potential than we had realised, but we’ve also been shown the huge complexity and scale of moving forwards – but the fact that those leading the push are apparently only hearing what a great unmitigated success it has been so far, does not suggest that they are really listening at all.

5 thoughts on “Necessity Not Evangelism

  1. Well if it wasn’t for Skype hearings, electronic bundles and applications by email, what would you be doing – going to court? How anxious are people going to be doing that? How many hearings would have to be adjourned when a person who wants an excuse not to attend can just cite Covid-19?

    Personally I think it’s a breath of fresh air, long overdue. Tribunals have been doing this for years BTW, Family Court is well behind the times. Some people are having difficulties, but some people always will.

    Look on the bright site, nobody can argue they weren’t given a screen (use audio only) or didn’t have a separate entrance and waiting room in the court building (which is falling down anyay) when they can have the hearing from the safety of their own home, or refuge, or wherever. You can’t use the excuse that your car broke down or you missed the train for being late. Hearings are on time, and keep to time, no more waiting around all day while the judge deals with other cases.

    Emergency hearings – no need to find a free judge in the local court, you can have the hearing in any court! Need to go to the High Court urgently – no time wasted on public transport, you’re straight there!

    Litigants who are already working from home can carry on with their normal job until their hearing, have the hearing and then go straight back to working.

    There are always naysayers, there always will be. We used to have high street banks, have to visit the doctors for minor ailments, spreading our germs as we went, go to the post office to tax the car and the newsagent to get our news. Many things have changed and many things will continue to change. The important thing is to identify the problems and fix them, not to throw the baby out with the bathwater!

    • I’m not a naysayer. I’ve been doing remote hearings and as I say in the post there are things that work well, better even than face to face. The Transparency Project’s survey of parents shows some preferred it. BUT. That doesn’t mean everything is fine and its suitable for everything, which is the impression that this article gives.

      • I didn’t say you were a naysayer. It’s ironic really that judges have been saying for years in relocation cases that the left behind parent can continue their parenting by skype, for instance Re W (Children) [2011] EWCA Civ 345 (30 March 2011) (https://www.bailii.org/ew/cases/EWCA/Civ/2011/345.html), but when they have to interact with adults by skype they have a problem!

    • “Use audio only” – I advise against. The judge may prefer to see you; demeanour counts for a lot. If the other party can see you too that’s just too bad.

      “You can appear from your home or your refuge” – indeed you can. But how does the judge or anybody else know who may be in the room with you who shouldn’t be, possibly prompting you?

      And finally: the types who make excuses for not being there will just make different excuses. My router failed. I could not get a signal. My child needed the bandwidth for his schoolwork (shades of the dog ate my homework!). You name it, they’ll think of it.

      I am just glad that the RCJ is Grade 1 listed – as is the UKSC – or we know what would happen. Parliament Square McDonalds and Sainsburys in the Strand?

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