Asynchronous legal hearings and pandemic fatigue discussed at civil justice conference

Professor Richard Susskind
OBE FRSE

Speaking at an online conference hosted by the Judicial Institute for Scotland on what lies ahead for civil justice, the legal futurist laid out developments in the court system that he expects to see.

Professor Susskind suggested that synchronous communication – involving the coincidence of time and place – ought to give way, at least partially, to “asynchronous hearings or online judging” in low value cases.

He added: “Communication is synchronous when people need to be available at the same time, such as in a phone call, a meeting or a video call.

“Asynchronous communication is the text message, email or WhatsApp, where you send and receive messages at your convenience. 

“It turns out that asynchronous communication is often considerably more convenient than synchronous communication. The idea of asynchronous hearings is one we want to pursue.”

He went on: “There would be some kind of online discussion, and the judge delivers the decision in like form. No one would have to take a day off work and we could have a far more diverse judiciary because judges would not need to be available during normal working hours. It would be quicker, lower cost and more convenient.”

Lord Pentland

Scottish judge Lord Pentland, who also spoke at the conference, had “serious doubts” over the quality of substantive hearings held online with the technology as it stands. He said the dialogue “between bench and bar … cannot be replicated online”.

“Over a video link interventions and exchanges between the judges and the advocates are awkward and stilted. The technology acts as a barrier, inhibiting free-flowing and spontaneous dialogue. The interchange becomes strained and difficult. As a result, the quality of the hearing is diminished. And if the quality of hearings (particularly appellate hearings) is reduced in this way, ultimately the quality of our law will suffer,” the judge suggested.

He also expressed worry about the absence of formality “that is vital for any court hearing”, adding: “There is no real sense of the court as a place because the court is no longer a place. The rituals and symbols which reflect the authority and independence of the court are missing.”

In the context of the prorogation litigation of 2019, he said that the “authority of the Court of Session was powerfully conveyed” and “filtered through the public consciousness”.

“The image of the court as a place communicated the court’s separateness, legitimacy and standing. I doubt that the same effect would have been achieved if the judgment of the First Division had been delivered from and analysed over a studio-based news desk.”

Roddy Dunlop QC

Dean of the Faculty of Advocates, Roddy Dunlop QC, commented on the mental and physical health concerns that come with remote working. He said one in three advocates who responded to a Faculty survey said its continued use would be detrimental to their mental health.

“As has been remarked, there is a real difficulty that ‘working from home’ is morphing into ‘living at work’, Mr Dunlop said.

Of a similar survey of judges and sheriffs, he said: “Respondents here expressed the impact that virtual courts had had on their health and wellbeing, citing eyestrain, increased fatigue, low morale, isolation and other negative factors.

“They also reported an increased need for preparation time for court hearings, difficulty in adapting the discipline they previously exercised during in-person hearings, and an increased administrative burden on themselves and their clerks.

“One memorable response indicated that if the current mode of working continues, the judge in question would be looking to retire as quickly as was feasible.

“That is not in anyone’s interests.”