COVID Times: Where will technology take dispute resolution?

Adopting technology seems to be the solution for most sectors in these unprecedented times. The past few weeks have seen both the Bar and the Bench embrace technological solutions for urgent hearings.

While such sudden imposition of technology has its own challenges, most believe that it is the way of the future. Courts are now looking to embrace this “new look” permanently and not restrict it to just the COVID-19 lockdown period. In fact, the Hon’ble Supreme Court has stated that they will now hear matters through video conferencing on a “large scale”.

What does this really mean for the legal profession?

Some of the key areas which are likely to undergo a paradigm shift once e-courts are fully functional are discussed below.

(i) Concise drafting and paperless courts: A truly digital court would mean that it is paperless. Instead of relying on physical files, judges will read and rely on electronic versions of documents.

It would not be incorrect to state that majority of the pleadings submitted before Indian courts are lengthy and verbose with the issues repeated across documents multiple times on different pages. While it is still possible for the counsel to take the judge through paper pleadings by referring to various pages, with lengthy electronic documents, this could lead to some difficulties.

The positive here is that perhaps, courts will start insisting on more precise and succinct drafting as is the case globally (in international jurisdictions). While some judges have time and again made remarks in open court about 1000+ page petitions filed by lawyers and the need for being concise, going forward there is likely to be a lot more emphasis on this.

Hopefully lawyers will step away from the “if it doesn’t harm us, let us add it in the pleading” style of drafting.

(ii) Greater accountability: There have been discussions of recording court proceedings even before the lockdown. The Supreme Court as well as the Delhi High Court have been receptive about allowing audio-video recordings.

In fact, in 2017, a Division Bench of the Delhi High Court, in a review petition against an earlier order disallowing audio-video recording of a specific proceeding, stated that,

“Open courts are an integral part of access to justice. When a court hears a case, the proceedings are open to all, saving notable exceptions.”

One year later, in 2018, the Supreme Court in Swapnil Tripathi v. Union of India allowed live streaming of certain court proceedings of constitutional importance to advance an “open justice system”. This judgment summarized the benefits of live streaming and held that “sunlight is the best disinfectant”.

Recently, a Division Bench of the Karnataka High Court issued notice to the state government, the state bar council, and the Registry to make a provision for audio-video recordings in the High Court, subordinate courts and all tribunals in Karnataka.

E-appearances and e-courts can make recording proceedings a lot easier, since almost all technology platforms will provide this option. Of course, adequate security measures ought to be put in place.

I have little doubt in my mind that all proceedings, without exception, should be recorded and digitally stored. Reason being, not only will this ensure greater transparency in the functioning of courts (how many times have you felt that you argued and covered a lot more than what the order covers?), it will also allow higher courts to audit the functioning of lower courts.

For instance, high courts could form committees of judges who could periodically audit recordings of lower courts to see how different cases are being handled. This will also create a more accountable legal system which will ultimately benefit the litigant. Of course, litigants could challenge a lot more orders if they believe it is not consistent with what was argued and recorded, leading to, possibly, increased litigation.

Further, a direct consequence of accountability could be emphasis on well-researched petitions as lawyers will have to step away from the “what was missed while drafting can be taken care of during arguments” approach.

(iii) Step away from conventional court craft: One big takeaway from working with a counsel is learning the art of court craft. Presenting arguments, knowing what to focus on and when to remain silent, using the right tone, tenor and body language, etc. are skills that one is constantly learning from those who have mastered it.

With larger reliance on e-courts and decline in physical hearings, the focus on this art may reduce significantly. As stated above, the hope is that judges will start relying more on what is presented in the pleadings than on arguments. Lawyers will have to have to evolve and focus on listening as opposed to jumping in to interject.

(iv) Dates with time: While use of e-courts may not necessarily result in short dates, it may provide for a more efficient system of asking for adjournments and pass overs. While currently lawyers spend hours waiting for their matters, perhaps technology will evolve such that there are systems in place that allow alerts to be sent to lawyers 15/20 minutes prior to their matter.

This should allow a better use of everyone’s time and really make the system more efficient for all parties concerned. In fact, it will not be surprising that in the times to come, dates may be accompanied by a specific time or a range. This will also ensure that any given point of time, the court’s servers are not encountering heavy traffic, especially from those lawyers and clients whose cases are listed for a different time slot.

(v) Lesser adjournments: How many times have we appeared in a case with the other side seeking an adjournment on the ground that (a) the main counsel is in another court or (b) is on his/her way, (c) or the client is not available because he/she is traveling, etc?

Since appearing in a case would involve signing into an online platform, the lawyer/client could “appear” from almost anywhere as long as they have an internet connection. This should reduce unnecessary adjournments.

(vi) Adoption of legal-tech solutions: An obvious sequitur of e-courts and online hearings is the need to have better tools to manage all the incidental work. For instance, Artificial Intelligence/machine learning tools that assist the bench with relevant precedents in almost real time by understanding the context of the petition and arguments could be developed.

Similarly, better research tools could also be used by the Bar to bridge the gap (to some extent) between a good and an average lawyer. If the standard of research and drafting consistently improves across Indian courts, “justice” may get a lot more predictable.

Further, like in most arbitrations, lawyers, judges and clients could get access to hearing transcripts, which could be automatically generated. This could help lawyers prepare better, especially during final arguments. Clients will also have great transparency about what transpired “in” court.

(vii) Increase in online mediation and conciliation: In the short term, litigation is likely to be quite unpredictable. Will the courts get overburdened with new cases? Will online hearings and its initial teething troubles allow lawyers and judges to manage multiple cases on a single day? Will this result in longer dates? All these are questions which are very difficult to answer at this stage.

However, if the legal ecosystem (which includes clients as well) is keen to adopt and embrace technology, there is absolutely no reason why the unpredictability of litigation will not push clients towards technology-driven conciliations and mediations. Imagine logging into an online platform, paying a small token fee (which is far less than what a litigation would cost), selecting a mediator and a hearing slot, uploading relevant documents and then attempting to resolve a dispute with the help of well qualified mediators.

Then, if the case is settled and the mediation/conciliation proceeding took place in compliance with Sections 61-73 of the Arbitration & Conciliation Act, 1996, Section 74 would give the settlement the same effect as an arbitral award. The Delhi High Court Mediation Centre, Samadhan, is doing some phenomenal work in this space.

(viii) Legal fee: This is a tricky one and something that almost all of us are interested to know. Will online hearings increase or decrease fee charged by lawyers or will it not have any impact? While it is really difficult to predict this, my sense is that with a big focus on well-researched and drafted petitions, legal fee, especially for appearances, is likely to come down in the times to come.

The opportunity cost will no longer be as high as it presently is. The premium fee for outstation appearances may also not exist. However, lawyers will be able to appear in a lot more matters in a day (provided they can) and the need for those with specializations (like competition, tax, telecom, data protection, etc.) will continue to stay.

(ix) Attire: I recently had a colleague ask me, "How will I appear if I don’t have bands at home?” This got me thinking whether online hearings will make us move away from the conventional black and white with a band and gown to perhaps business formals. I certainly hope not, but we are living in unprecedented times with new generations of lawyers and judges who are a lot more open to change.

While the above are some changes that I foresee in the legal profession, there are also some challenges. A lot has already been written about them so I will try to keep them, in the spirit of this article, crisp and precise.

The key challenges

(i) Aversion to technology: It is no secret that lawyers are the last to embrace technology. Getting most of the legal community, i.e. both lawyers and judges across India will be quite challenging. We have already witnessed challenges when e-filings was introduced in some courts. While our community has historically been resistant to change, learning and adopting technology will be critical for survival.

(ii) Continuous training: Lawyers and judges will require ongoing training for them to manage the offline to online transition. Companies whose platforms are officially adopted by courts will not just have to give training sessions, but also travel throughout India (especially in the non-metros) to give free in-person training to lawyers so that nobody is left behind.

(iii) Access: It will be critical to provide standard technological infrastructure across Indian courts so that appearing in a different courts does not require shifting platforms. A collaboration between the government and private players is a must with all technical and legal safeguards in place.

(iv) Security and data protection: This is critical because of the nature of recordings and data that will be shared and stored on servers. Adequate security standards will have to put in place so that data (especially electronic documents/evidence/court recordings) cannot be tampered with or hacked.

(v) Network connectivity and bandwidth: Since hearings will take place online, adequate network connectivity and bandwidth will become the backbone of the legal profession. Imagine trying to argue an important case where screens are hanging or systems are disconnecting because of poor connectivity. The right technology infrastructure is critical for the success of e-courts.

(vi) Influencing witness during evidence: This is a concern expressed by most trial attorneys. Witnesses are not allowed to consult anyone, including their lawyer, during their cross-examination. It will be difficult for the judges to ensure that witnesses are alone when being cross-examined or that one of his lawyers is not sending responses to him over text messages. Some guidelines and procedures around witness statements and cross-examinations will have to be formulated.

Like any new initiative, digital courts will have their share of (more than) teething troubles. However, they are certainly a step in the right direction. Lawyers and judges might experience some pains, but litigants only stand to gain. And they, in any legal system, are the most important stakeholders.

Interesting times ahead (with hopefully a lower carbon footprint)!

The author is a Partner at PSA Legal.