21st January 2022
Today – with my lawyer’s head on – I spent the day in an actual court at an actual hearing, my first since at least 2019.
And the dynamic was absolutely different to online hearings, so much that it felt like going back in time with Bill and Ted or the Doctor.
Not just different in quality, but different in the very nature of the advocacy and the the interaction with the judge.
I happen to be a great fan of things being done virtually whenever possible, from parish council meetings to parliamentary committees.
I am disdainful of ceremony and ritual, and of the theatre of politics and the law.
I do not like politics and law to be cosplay exercises that are better suited to historical enactment societies and fan conventions.
I would place wigs and gowns into the museums in which they belong.
If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.
But.
Strip away all of the daft paraphernalia, there are still the intellectual and forensic exercises that do not need stage props to make then interesting, even compelling.
And such exercises in the same room are radically different to lots of muted faces on a zoom call.
I was not expecting this.
I thought virtual hearings had superseded the need for actual hearings.
But I was wrong.
Some things cannot be replaced by a virtual substitute.
******
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Not a court of law, but I found the virtual meetings of the charity of which I was a Trustee a pale imitation of the real thing. In part, but only in part, because of (my) difficulty in hearing what was being said.
As someone involved in producing, and training others about, medico-legal reports, I find it interesting that whilst the justice system (or MoJ?) apparently are content to undertake hearings via video, they are very disdainful of video assessments of patients.
From a medical point of view, some conditions have no relevant tests that help, and can be reliably diagnosed by just hearing the history, whereas others depend critically on ‘objective’ external evidence (i.e. examination and tests).
Would I be right to think that a similar ‘differential acceptance’ occurs in judicial decison-making, i.e. depending on the substance of the case, video may be more than enough, whereas for others an appearance in person is really important?
Or is there some other criterion (the individual[s] concerned; the experience of the decision-maker; some other factor[s])?
Just a question… Sorry to be naive.
I understand the concept of criminal proceedings being “sub judice “ and that public comment during a trial is unhelpful to the judicial process. What is the position in a civil case when the hearing has concluded but before a ruling has been made? Is it ok to comment on the reports of what has been said during the proceedings? Presumably the judge would not be expected to be swayed by comment at this stage. So is comment on cases of public interest with profound political implications nevertheless unwarranted until the final judgement has been published?
I was interested in your comment regarding parish council meetings, as the chairman of a parish council and husband to a medically extremely vulnerable transplant patient. I too miss the face to face, more socially interactive physical meetings, and I think the online meetings lack lustre. Nevertheless, when the government (indeed, my MP took credit for it) deliberately time expired the permission for parish councils to meet online and we were all expected to return to small stuffy rooms (all that is often available to parish councils), I found I had to send my apologies. I agree there is something missing from online meetings that cannot be replicated without physical presence, but I fear democracy is impacted by the outdated effective though unstated prohibition on virtual meetings.
Zoom etc are ok for discussions around a shared view or commercial interest but a negotiation needs to be in the same actual room. You need the social interaction on the margins and then to be able to smell the fear (or triumph) from the other side at the table.
That’s a very interesting observation. It would be worth spelling out the difference, so please do.
“…I was not expecting this.
I thought virtual hearings had superseded the need for actual hearings.
But I was wrong.
Some things cannot be replaced by a virtual substitute…”
Er, no S*** and Sherlock spring to mind – in a nice non irksome way 😚
Much depends on what your/one’s occupation is – I ‘trouble shoot’/consult/advise for a living in/around large procurements & contracts – what zoom/Teams all seem to fail on is the ‘, mark-1 eyeball’ factor – it’s the little human give-aways , that can’t be replicated by the computer screen.
Sure, I can do more than 60% of my job remotely – but for certain interactions real 1 to 1 or 1 to many interactions are vital.
We’re still learning from Covid and its aftermath.
Demographics have much to play too – I’m an old lag now but I genuinely feel for younger generations who are starting on their professional and or vocational careers – As a young systems modeller I had a raft of expertise on hand to answer queries about my work/job – it made learning and job satisfaction so much better – I’m hearing from some younger friends that the buddy/mentor/support systems are just not there these days to provide guidance/cajoling inc ar** kicking that we all needed when we were young.
Really hope young folk get the real life (non zoom) experiences that I and colleagues got – else work is going to be very hard.
I agree. Nuance, body language and unobtrusively observed “tells” are essential in effective high level negotiation, even low level for that matter, and cannot be adequately replicated on a “zoom” call. The eyeball to eyeball, the handshake, posture etc etc are all important elements of interaction, whether in a court room, board room or meeting room. I miss them and look forward again to being better informed of my interlocutors. Surely, we humans value interaction of all the senses: sight, hearing, sound, smell, touch and atmosphere, because they each individually and collectively inform us. We are animals after all.
I know what you mean about wigs, titles, etc. However, I think it is important to have something in court which recognizes that the situation is representing a part of the constitution. So some sort of differentiation is necessary, and the wigs, titles etc. perform that function in my view.
Early days of computers in offices I would always try and sit near someone who knew much more than me and that was in a large Council office in the 1990’s.
Now I am the greater expert in the house so I have to sort out the problem for my wife.
A couple of days ago I gave a 10 minute presentation online on Teams and couldn’t find the share screen option. I sent the large file via a file sharing site at the last minute and pronounced next slide etc….
This was embarrassing, the slides didn’t move as fast as I wanted and so I overran. Now if I was just starting out this would have been humiliating, but then if I was just starting out I would probably have known where the share screen option was located.
“If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.“
Indeed. Three decades ago a remember reading a humorous article on how to hold a successful dinner party – you know advice like ‘always stick to small talk or perhaps on occasions middle talk but never big talk’.
Anyway one of the rules was ‘never invite two High Court Judges together’ – wise words.
I disagree on your suggestion that parish council meetings should ‘wherever possible’ be virtual. They should be allowed to be, but from my experience as chair of a town council, I believe local democracy is better served, more often, by meeting and discussing together in person. This could include some virtual attendance too.
This is the experience of many in different walks of life. Communication is more than a voice. I have to remind colleagues that the reason the lecture will remain the cornerstone of university teaching is to remember where it takes place – in a theatre. So, what you are pointing at is the difference between a reading and a play. You only have to watch Lord Pannick in the Supreme Court to see how much information is transmitted by his actions. That is part of his genius.
There are addition problems with online meetings. One is that people are usually speaking while sitting, yet the voice works far better when standing. Another is that creativity and problem-solving are very difficult online.
I fully concur, Mr Green. Virtual ‘trials’ are already in existence in ‘real’ courtrooms and those held via computer a further step towards totalitarianism (which is coming by degrees). Yes, do away with the wigs and gowns and the “M’Lords” et al but focus on HONESTY and INTEGIRTY and ANTI-CORRUPTION and a bona fide CPS and incorruptible POLICE…
I trust you will publish this because you do appear to have a tendency to ignore my comments, sadly. A wise person actually listens, not ignores.
Now let’s get back to reality…
I’m very interested in this, as I’m involved in quasi-judicial regulatory proceedings, and views differ as to whether online or physical hearings are fairer, or whether they’re just equal but different.
What is it about being physically present that makes the process different/better, do you think?
Obviously it is probably more pleasant to be interacting with real people than with muted head-shots, but would you say that it affect the fairness of the process at all?
In particular, in assessing witness evidence, some people believe that evidence can be better assessed if people are physically present. But is that true, or is it just what we’re used to?
And just what are we assessing when we can see the whole person that we may feel we can’t assess from their head shot?
Are we at risk of considering irrelevant things such as our personal assessments of witness ‘demeanour’, etc, which could inadvertently include all sorts of unconscious bias as to their style of dress, movement, how they hold themselves, whether they seem comfortable or nervous, etc?
(Of course, all these unconscious biases are on top of others of which we may be rather more aware, such as age, skin colour, age, gender, accent, etc.)
I would very interested in views.
I can’t wait to read your takes on hearings in the Metaverse.
This isn’t a joke.
Really interesting piece – thanks. Your commentary has been especially insightful lately.
Legal Aid lawyers will soon not be able to afford to get to Court.
And as for the clients……. ???
I am no lawyer, but it seems to me that in an on-line court there can be no place for sight of original documents which could provide opportunity for fraud, couldn’t it?