Reflections on 2020: Thinking back on the unthinkable

This year has seen many events happen which the vast majority of us could never have imagined. Setting aside the unfathomable, I had certainly not anticipated spending quite so much time trying my hand at endless new crafts (the majority abandoned), endless new bakes (all eaten) and such little time in an actual courtroom. 

The latter is a topic that we have discussed many times at SCL (the first two less so). Indeed it is an area that normally features in the predictions section of SCL around this time of year. However, this year I would like to focus on it as an area of reflection. 

While this year has shown the ability of the Courts to adapt, the shift to virtual hearings does leave lots of room for improvement. 

First of all, I think we must resist the temptation to simply digitise a system that is hundreds of years old. What coder would ever set about pure replication of the past? What we have seen in the last few months has been the shift of a process – from one that took place physically to one that takes place either over a video call or indeed over a classic telephone call. While there are still advantages to this adaptation, it is not quite the digital revolution many of us envisaged when we discussed online courts. It is really a shift from the real to the virtual. Therefore, I would invite us to consider as we move forward the potential for how an online court should be built, not simply using the digital to transpose pre-existing reality to the nearest possible virtual approximation to that status quo. Perhaps – digital breakout rooms or means of passing in-hearing “notes”, effective ways of sharing documents with the virtual courtroom and public access to these digital courtrooms. 

Care and thought should also be given to those who in fact find online courts to be less convenient and indeed more stressful because of the requirement to use technology. In the discussion around online courts many naturally suggest small disputes are the most suited, and I can of course appreciate why, to online resolution. However, these disputes in practice also involve some of the least legally supported litigants and those with the least technical support and assistance. Those individuals need to be considered.

Years of underfunding is apparent in the justice system. We cannot expect Courts with limited funding to be able to adapt to the digital revolution, whether thrust upon on it (as has been the case over the last few months) or embraced over time, if we do not provide adequate funding, investment and thought. 

We are all familiar with Asimov’s “I do not fear computers. I fear the lack of them.” My reflection is something similar for online courts. I do not fear the era of online hearings but rather the lack of a truly online hearing, and rather something in between. 

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