Pre-hearing written advocacy in aid of virtual hearings

In these turbulent times, triggered by the onset of Coronavirus disease (COVID-19), Indian courts (and arbitral tribunals) have responded with remarkable resilience by relying on video-conferencing as an alternative mode of conducting oral hearings.

Necessity, no doubt, is the mother of invention. However, to be fair, Indian courts have been at the forefront of making innovative use of technology in their day-to-day work, even during calmer times. As a result, this sudden transition has been relatively effortless for a system that was already at the tipping point of making this transition.

Several institutional guidelines exist for making efficient use of video-conferencing for virtual hearings in international arbitration. For example, the Seoul Protocol on Video Conferencing in International Arbitration 2018 compiles some “best practices” for planning, testing and performing video-conferencing for international arbitrations. The CIArb Guidelines for Witness Conferencing in International Arbitration 2019 are another example. Indian courts (and arbitral tribunals) could examine such “soft law instruments” while evolving their own best practices and guidelines for conducting virtual hearings through video conferences.

However, these turbulent times are not just an opportunity to innovate in terms of use of technology. They also provide an opportunity to reflect upon the existing practices of Indian courts that could be better utilised to supplement the use of video-conferencing for the purpose of conducting effective and time-efficient oral hearings through video-conferencing i.e., hearings which are in fact “virtual hearings” as a substitute for “in-person hearings” and not merely video-conferences.

Sir Francis Bacon writes that a question was asked of Demosthenes, the greatest of all ancient Greek orators, as to “what was the chief part of an orator”? He answered, “action”. What next? He answered, “action”. What next again? Again, he answered “action”.

The primary objective of good advocacy is to get the advocate’s point across for due consideration by the court or tribunal. Towards achieving this objective, written advocacy can be a very effective tool, not necessarily as a substitute for oral arguments, but in order to supplement them, for achieving better clarity and efficiency in a virtual hearing.

Barring rare and emergent exceptions, making it mandatory for the parties to file (and exchange with their adversaries) pre-hearing written submissions, would certainly enhance the robustness and efficiency of any virtual hearing.

To those who are not yet adept in the use of this technology, mandatory pre-hearing written submissions would provide an opportunity to ensure that all their points, articulated precisely in writing, receive the consideration that they deserve,meven if all those points could not be orally argued to their satisfaction, during the virtual hearing.

On the other hand, to those who are already comfortable with this technology, mandatory pre-hearing written submissions would provide an opportunity to make their oral submissions precise and focussed, rather than labouring any point unnecessarily, during the virtual hearing.

For courts (and arbitral tribunals) also, mandatory pre-hearing written submissions could be an opportunity of being better assisted by counsel during the virtual hearing. Virtual hearings could be conducted more efficiently, by straightawayengaging with the advocates on points that the courts (or tribunals) have reflected upon, while reading their pre-hearing written submissions.

It is no doubt correct that the reliance on pre-hearing written submissions for “in-person hearings” during calmer times is already quite prevalent in India. For example, Order XVIII Rule 2(3A) of the Code of Civil Procedure, as applicable to commercial disputes, specifically provides for pre-hearing written submissions prior to the oral hearing in-person.

While one could argue that pre-hearing written submissions should in any event be used more often by Indian courts (and arbitral tribunals), it is their invaluable contribution during a virtual hearing that makes them indispensable for conducting oral hearings through video-conferencing.

In Singapore, as part of various measures announced by Chief Justice Menon on 26 March 2020, certain specified hearings can now be conducted by courts through video-conferencing or, alternatively, by written submissions of counsel alone. Therefore, other parts of the world, where the use of pre-hearing written submissions is already the norm, are now exploring the scope of using written submissions of counsel as a substitute for oral hearings through video-conferencing.

In the United States, the Supreme Court often rules on emergency applications without hearing oral arguments, and federal appeals courts frequently decide appeals based solely on the parties’ written arguments.

Now a word of caution. Unless administered carefully, this panacea has the potential of becoming a malaise. Pre-hearing written submissions also have the dreadful prospect of becoming unnecessarily voluminous because of wordy ramblings and lack of focus. Overloading the court (or arbitral tribunal) with such unnecessary reading material can defeat the very purpose that this suggestion seeks to achieve.

Therefore, strict restrictions regarding their structure and their length or volume would encourage the preparation of crisp reading briefs, which would assist rather than confuse the court (or arbitral tribunal). For example, the Delhi High Court in Kiran Chhabra v. Pawan Kumar Jain, reported at 178 (2011) DLT 462, has laid down detailed and clear guidelines for submission of written submissions under Order XVIII Rules 2(3A) of the Code of Civil Procedure. The Delhi High Court observed that keeping written submissions “…brief is more helpful that giving a long mass of something which could even be incoherent. Structuring is most important. If an approach as this followed, the Court gets full assistance, much lesser time of the Court is consumed, and there is less likelihood of the Court falling into error”.

In my view, prescribing such clear and strict restrictions would be as important as the very idea of mandatory pre-hearing written submissions. With this caveat, pre-hearing written submissions could significantly optimise the use of virtual hearings.

About the Author: The author is a Senior Advocate, based in New Delhi, whose practice before the Supreme Court and other courts and tribunals includes a wide range of commercial litigation and international commercial arbitration, with a significant multi-jurisdictional component.