No need to rise for the judge in experiment of virtual court hearings

All the latest technology is being used to ensure that the legal system continues to fulfil its diary of cases

As part of the social distancing measures introduced to help deal with the coronavirus pandemic, I have taken part as counsel in “virtual” Commercial Court hearings during the course of last week, joining remotely via video link from my study at home. A full diary of remote trials looms for the next few months.

The Commercial Court is trying to be positive and inventive in the face of the crisis. It is used worldwide and wants to be open for business. The knock-on effect of not continuing with hearings would have a very significant impact, so all of us are doing what we can and using the latest tech.

And while my hearings may have lacked the normal drama of a court hearing – eye to eye contact between parties and the formality of the

‘Can you have a fair trial this way? I think the answer is yes. Can you have an efficient trial? Again, yes’

courtroom – that has been replaced for me with the drama of fearing my children are going to burst into the room at any moment and appear on screen in front of the judge. I’m happy to say that it hasn’t happened yet!

My pretrial checklist is now: 1) check the kids haven’t hidden musical wands in the room; 2) check they haven’t hidden talking toys; 3) check they understand not to enter the room; 4) locate the “cut power” switch in case of 1 to 3 occurring.

The technology works very well. The judge and counsel for the parties can be seen on a grid system on screen, with other parties joining through audio. The camera can zoom in on whichever counsel is addressing the hearing and someone in a different location places any documentary evidence on screen for us all to see.

The courts are concerned about maintaining open justice and the challenge is to accommodate the public and the media at future virtual hearings.

Can you have a fair trial this way? I think the answer is yes. Can you have an efficient trial? Again, yes. But we will need to accommodate different circumstances, such as different time zones if a witness is giving evidence from another country.

There is the issue of court decorum and formality and to what extent that

‘However great you might think your children’s pictures are, they might be a bit distracting during a major trial’

is preserved. Unlike all other hearings we didn’t stand when the judge came in. It might be a bit odd for people to stand up in front of their screen and the advice we have received from the courts is that it’s unnecessary.

We have been asked to be mindful of the background behind us and how it might appear on screen to the other parties. The guidance is that it should be neutral. However great you might think your children’s pictures are, they might be a bit distracting for everyone else during a major trial.

Jeremy Brier is a barrister at Essex Court Chambers, specialising in complex commercial disputes, and a legal commentator