The trial of technology in Litigation: A virtual experience

As a law student, especially one who is keen to take up the sword and shield of litigation, probably one of the most enthralling moments is when one first enters the courts.

Be it the somewhat overwhelming architecture of the court building, or trying to manoeuvre through the sea of black and white, occasionally catching a glimpse of a celebrity senior counsel or the even more awe-inspiring sight of the court room with the Ashoka Chakra over the majestic high back chairs where the judges sit and preside over cases.

Look behind and there is a gallery full of young interns and even lawyers, following Justice (retd.) Deepak Gupta’s words of wisdom - to be present in court rooms to enhance their learning.

In the present COVID-19 pandemic, however, these sights have been replaced by a computer screen, intermittently visible counsel, and a plain white wall or a famous library. The adrenaline rush from the combination of the hustle-bustle of your fellow colleagues as well as the nerves over one’s own matter, now stands replaced by a painful wait for a call from the court master informing the parties to join the video conference.

In Part II of “The Trial of Technology in Litigation”, we suggested that the way we litigate is already changing and it is time that the legal system prepares itself for the next phase in this evolution. Hearings are being conducted through video conferencing for well over a month and it is unlikely that this system will be entirely done away with soon.

The next phase of litigation is here. Having experienced the novel virtual courts before the High Court of Delhi, this article seeks to give a brief glimpse into the practicalities and contours of attending video conference hearings and further share the hiccups that need to be cured to make this virtual world into an efficient reality.

The experience

We have been witnessing hearings in the High Court where the judges are sitting from their respective homes, i.e. two separate locations. In some cases, the judges are even separated by a couple of thousand kilometers, with the distance causing minimal hindrance to the hearing.

At the outset, we must place on record our appreciation to the High Court Registry and its officials for extending support to counsel who are finding their feet in this novel procedure. Answering repeated (and occasionally frustrating) queries, working in tandem to ensure defects are cured (the level of scrutiny still remains at a commendable high), working to ensure causelists are published and links are sent out on time, the officials have truly been working overtime to provide a strong backbone to the courts.

Anyone who has sought to file an urgent matter before the High Court is aware of the latest notifications as per which a one-pager application is to be uploaded highlighting the urgency in the matter. Once uploaded, a prompt text message and email confirmation is received and within a short time, an acceptance or rejection of urgency is shared via, both, text message and email.

If rejected, the litigant/counsel is given an additional opportunity of preferring a telephonic mentioning to the concerned judge. If the urgency is accepted, the litigant/counsel must serve the opposite parties and attach a proof of service to the pleadings and thereafter file the same.

Having completed all formalities of service and filing, and if there are no defects or the defects are cured within time, the litigant/counsel is issued a diary number and finally a case number along with the tentative date of listing. Then begins the wait.

The anxious wait not only for the causelist to be published, but to receive the unique vide -conferencing link that will enable the litigant/counsel to appear on the judges' computer screen for the hearing. Such links are generally shared within a couple of hours of publication of the causelist and in case of any issue/delay, the concerned officers have been kind enough to extend assistance to the overly anxious litigant/counsels over the phone, even at wee hours of the night.

Once the proceedings commence, the judges take the role of managing the proceedings, from ensuring that all parties are present, to asking the individual counsels to present their respective submissions, turn-by-turn. While, admittedly, the grandeur of the courtroom was evidently missing and the sight of multiple counsel appearing on a computer screen had a diluting effect, these ancillary aspects soon took a side-step, giving way to a disciplined and serious hearing.

It must be noted that despite all counsel/senior counsel being in different physical locations, there was an honest effort being put in by all, to ensure that the hearing does not get derailed. There were no unnecessary cross-submissions or interruptions, there was a marked appreciation for the content of the pleadings being filed, and most of all, patience on part of all stakeholders in the hearing.

In fact, one instance in a hearing really stood out for us where a senior counsel presented submissions while being physically present across the ocean and in a time zone where perhaps the sun was yet to rise. On a lighter note, perhaps this marks the end of adjournments on the ground that the main/arguing counsel is not in the city!

Looked from the perspective of a novel experience, the mode and manner of the hearingsare truly one for the history books. However, with the passage of time, it must be accepted that this novelty may actually be the starting point of the way forward and how we conduct most of our hearings in the near future.

It is necessary that we also consider the areas where the present process could be further tweaked so that it has sufficient ability to be applied to a larger category of matters as well.

The mis-steps

It would be somewhat presumptuous if one were to say that the system of video- onferencing has been perfected already. In fact, in a recent article, Justice (retd.) Madan Lokur has stated that even the Supreme Court is facing bandwidth and connectivity issues, ironically, during a hearing regarding internet access. The experience in the High Court, too, has not been without more than an occasional misstep.

Probably the first striking thing is the weight of the uncertainty and the wait - “Has the urgency application been properly uploaded?”,“When will the response be given?”, “Will I have enough time in the day to cure defects, if any?”,“Will the heavy PDF file be accessible by the Registry and opposite parties?”, “When will the link to the hearing be received?”

The heaviest question, however, is “when will my matter be taken up for hearing?”

It is conceded that even during the usual functioning of the High Court, one cannot predict the precise time when one’s matter will be taken up. However, due to the ability of observing the hearings prior to one’s own, an educated guess at the very least is more than possible. It allows lawyers to plan the rest of their work day and maximize efficiency.

During the present video-conferencing hearings, there is no way of knowing what stage the previous matter has progressed to, and therefore, there is an unknown wait that, on some occasions has even extended well beyond an hour from the scheduled time of hearing.

Due to limited access, even journalists are having a hard time in discharging their obligation to facilitate the openness of the system.

The next item on the wait-list is waiting for all the parties to join the hearing. If all parties are present, invariably, more time is lost in sorting out audio/video issues. While these may sound like trivial issues at first glance, when looked at cumulatively, a considerable amount of time of the court is wasted.

In fact, we have been witness to the judges being forced to repeatedly recapitulate the submissions of one party for the other, whose connection suddenly dropped.

The Supreme Court has a slightly different process, where the court master takes the roll call and ensures sufficient time is given to the parties to resolve their connection, before the judges enter the video conferencing hearing.

Thereafter, assuming that the internet gods are kind enough to allow a seamless and smooth hearing without any breakdown (an experience yet unknown to most in the fraternity), begins the actual hearing.

It is at this stage that one realizes that the change in approach to litigation necessarily requires a change in the drafting style as well. No longer can it be presumed that the relevant statutes will be immediately available with the judges or perhaps even the opposite parties. Therefore, an extract of the relevant provisions need to be reproduced in the pleadings itself.

However, even if this is done, the ability of reading through other provisions of the statute or other statutes, for the purposes of interpretation, etc., presently stands greatly restricted.

In the same spirit is the ability of pulling out precedents, handing over crucial documents that were not available at the time of filing, etc. Nor can a counsel easily hand over a spare copy of the pleadings, etc. in the event the court copy is taking time to be located (there have been unreported instances of incomplete pleadings being sent to the Hon’ble Judges, despite proper filing). These are facets that are essentially part of any regular hearing before the High Court which now leave the lawyers often scratching their heads.

Additionally, what stands restricted is the ability of the arguing counsel to seek instructions from their client/briefing counsels. More importantly, it remains to be seen how the judges of a Division Bench of the High Court consult with one another. These are the unwritten but long standing facets of justice and a fair hearing.

There is no doubt that we are in unprecedented times. However, such circumstances must not permit a question to be raised regarding a citizen’s fundamental right to a fair hearing. In view of our experiences, it is felt that there is definitely need for greater consultation and feedback from the Bar and several tweaks are necessary in order for the present system to be a long term solution.

Conclusion

The present system, which surely has its flaws, cannot be done away with, entirely; the pandemic is a reality one cannot turn their face from. Nor can we say that the earlier system must now crumble into oblivion. There has to be a synergy between the two systems that can lead us to evolving a more sustainable and long term procedure.

It has been repeatedly said that the first step is to ensure adequate infrastructure. Parallel to the same, we need a uniform standard operating procedure which builds on the earlier system, thereby enabling a greater number of cases to be dealt with by way of video conferencing.

Video conference hearings are here to stay, and for a substantial number of cases, this is definitely the new normal.

The authors are lawyers at IndusLaw.