Let’s cut to the chase. This post is about the value of bringing together common experience around the world on remote courts with the purpose of establishing best practice – for courts, judges, representatives and litigants. But, first, we have a diversion on the value of the rule of law – a topic of considerable political concern in the UK where a minister has accepted that his government intends to break its provisions, albeit in a ‘specific and limited way’. The link is the Bolch Judicial Institute at Duke University in North Carolina. This has compiled ‘Covid-19 and the courts: a resource guide for judges’. We will get to the content in a moment but our diversion takes us to the institute.
Mr Bolch gave the university $10m two years ago to found the institute. He inherited a chain of petrol stations in the south of the US. RaceTrac Petroleum is now a $9bn business with 750 stores. Mrs Bolch is an attorney but why does Mr Bolch, a garage owner, support the rule of law? And, indeed, go so far as to say it is the foundation of his business? Because he pioneered self-service gas stations: ‘People said I would lose money, that customers would just drive off after pumping gas,’ he recalls. Instead, they came inside not only to pay but to shop at the stores he installed by the pay desk. “Why did self-service work? Why didn’t people just drive off? For Bolch, the answer is obvious. “It comes down to the rule of law,” he says — a system of laws and understood repercussions for breaking those laws that frames our business and personal interactions and creates a moral code of behavior that the vast majority of us not only observe but cherish.’ And that is it. That is why the World Bank is concerned to sustain the rule of law. And is why the UK Johnson government has attracted such opprobrium in announcing that it will break it.
But back to the list. Someone has done some good staff work. It brings together information on the Covid 19 response of every state and territory on the US. Want the Spanish version of provisions in Alaska? You can get the link to it. Remarkably enough for an American source, the list even includes Covid 19 responses from a variety of international sources – including the Covid 19 advice and guidance of our own Judiciary. To be honest, the international component could be expanded a bit. For example, the only entry for Australia is the New South Wales Bar Association guidance. But, the intent is there and it is more than anyone else has done.
The Institute has grouped together its coverage under a number of headings which are judicially orientated:
- Returning to full capacity
- Remote administration of courts
- Special consideration for jury trials and in-person hearings
- Alternative Dispute Resolution and Online Dispute Resolution
- Court administrative orders and closures.
Links are then set out in groups under each heading. The value of this can be seen under ‘access to justice and the digital divide”. This includes a note from the Florida Courts on best practice for self represented litigants. Here are two excerpts to give a flavour of the document – which is actually only one of a series of rather good guides that the Florida Courts have produced: there are others. They also produce a ‘Benchguide checklist for procedural safeguards during hearings before a judge’.
The court should be mindful of the following considerations:
1. Ensure the technology is sufficient to allow the court to preside over and resolve the matter effectively. 2. Leverage remote appearance solutions that present little or no cost to pro se litigants. 3. Recognize costs to the litigants of using phone minutes and/or data if free and stable Wi-Fi is not readily available to them. 4. Verify the required equipment needed for all participants, ease of use, and the ability to access the solution remotely. 5. Control access to the proceeding for participants and determine the necessary level of privacy required for the event. 6. Ideally, use the same mode of remote appearance technology for all parties participating in the court event. 7. Account for ADA [Americans with Disabilities Act] requirements and web content accessibility standards.
The Bolch list explicitly focuses on judicial resources. Resources are available around the world for other participants. For example, JusticeConnect in Australia has resources on its website for self represented litigants at a remote hearing. This is a sample of its content:
Attending a remote hearing On the day of the hearing, you will be placed in a virtual waiting room once you log on to the relevant digital platform. Once you are admitted from the waiting room and can see the other parties in the hearing, you are in a hearing. From this point on, all the same rules that apply for in person hearings will also apply. A remote hearing is just as formal as a physical hearing, so make sure that you: Dress appropriately Be guided by directions as to when to speak, and when to address the court or tribunal directly Mute your phone or microphone if not speaking to avoid feedback or noise Address other participants in the hearing respectfully using their usual titles You should speak up if the hearing is starting but people you expect to be present haven’t been dialled in yet …
There are, of course, a number of domestic equivalents. Just an example, Resolution has a useful page on attendance in remote hearings of the Family Court. So too do various legal providers, including a helpful note from 1 Crown Office Row chambers (inevitably now rechristened more trendily as 1Cor). This includes the practical: ‘Technological issues may well occur just before or even during the hearing. Keep the email with the invitation details to hand so that you can easily re-join if you do get “kicked out”. It is also important to have a note of your opponent’s number in case there are technological problems.’ AdviceNow and Citizens Advice have pages. So too does Her Majesty’s Courts and Tribunals Service.
The practical issues of remote court appearances are common around the globe. Hence, the value of a site like remotecourts.org associated with Richard Susskind. The Bolch Judicial Institute have done us a favour with a first stab at a collection of multi-jurisdictional materials. The next step is surely to bring global best practice together not only in one place but in one document. The problems are common so many institutions would be well placed to do this. It would incorporate the best of the best for all participants. Whoever did it could then put it out to consultation and precipitate a global conversation on a practical topic for which it is difficult to think of a precedent. Hey, Duke Law Department, have you got a spare research student? The evolution of garage forecourts in the mid-twentieth century puts you in poll position for this honour. But many others would be well able to take this up. And it would be really valuable.