Experience of the “new normal”: A lawyer's account of video conference hearings

Social distancing is the new norm. Virtual Courts, ie, court hearings through video conferencing (VC” is the “new normal”.

Is the “virtual” equivalent to the “real”? How does a VC appearance – sitting alone on a chair from the confines of a home/office, partly in casuals - compare to actually standing in robes before judge/s in a court room full of people?

Over the past couple weeks, I have attended over a dozen matters before the Delhi High Court through VC, as a Prosecutor for the Delhi government. The experience of using new technology and looking into the screen, rather than directly at the judges, has been a daily learning process.

Lights, camera, action

Before the very first VC, I was anxious to have the camera placement correct. I positioned myself in front of my office desk and alternately placed the iPad and the phone at various distances and height to ensure that (a) I am clearly visible, and my face is proportionate to the screen, (b) the waist down casual attire is covered, and (c) the background is appropriate for a court hearing. Being dark complexioned, I was particularly concerned that lighting is correct and my video feed is clear.

The first hearing was, however, disappointing to the extent that while I had spent considerable time working out my placement, the judge was sitting on a living room sofa, far off from the camera.

In a subsequent hearing, a judge remarked, in a light hearted manner, on the colourful drawings behind my chair. They had been on the pin board for a long time – made by my daughters. Till that time, I had no realization about their visibility in the video feed.

In another hearing, the Chief Justice noticed the bookshelf behind the petitioner’s counsel and commented that the judges now have access to the rooms/offices of the lawyers. Indeed, the lawyers also have access to the judges’ chambers now!

Patience is the name of the game

The emails intimating lawyers of hearings have a meeting number (access code), a password and also the time of hearing. When I first noticed the time of hearing, I believed it was a pleasant change. I felt that fixing a specific hearing time would avoid time wastage, something that happens regularly in real courts.

Any hopes of punctuality were dashed in the first hearing itself. I repeatedly entered the meeting number and password, and the screen kept on showing that hearing has not started. The hearing was indeed delayed.

Invariably, none of the hearings have started on time as communicated in the emails. Many a time, the counsel for the parties get in touch with each other to confirm if a hearing has started or not. After all, it is difficult to figure out if there is a technical glitch in one’s own system or hearing is genuinely delayed.

In VC, if the matter is delayed, it is difficult to predict when it would get taken up. One just cannot go inside the courtroom and make a guess. Some Court Masters call to inform in advance, while others do not.

The latest communication from the Delhi High Court asks counsel to be ready for the VC atleast 15 minutes in advance. Thus, like the real courts, the lawyers cannot be sure on when the hearing would start.

Silence – the Court is in session:

Anyone brought up on Indian movies is all too familiar with judges holding a gavel in hand and shouting for order in the court. Indeed, even in the real courts, judges exercise authority to maintain decorum in the Courts, asking noisy lawyers and litigants to either calm down or walk out of the court.

The VC ‘virtually’ takes away this authority. Several hearings have been disturbed due to background noises mostly from the conference room, which (as I understand it) is used by multiple court masters/court staff. Unless the concerned court master switches on the ‘mute’ button, one can hear proceedings of other judges as well. In one hearing, the judge stopped the proceedings and directed the court master to re-connect once the background noise is taken care of.

The lawyers are also need to ensure that (a) there is no disturbance – visual or audio during the hearing and (b) multiple lawyers do not speak at the same time. In real courts, it is difficult to make out what is argued when counsel for both sides start speaking together. It is nearly impossible during the VC.

No outsiders allowed

The VC severely restricts open access to the case hearing. A person can participate only if granted permission. In one matter, the counsel for the complainant wanted to attend a hearing to oppose a bail application. Even though I conveyed the counsel’s request to the judge, it was declined.

The concerned counsel did not even get a chance to make a request on his own. Thus, even lawyers cannot observe hearing in matters unless their client is a party or permission is granted. The same is true for clients who are otherwise given access to their hearings in real courts.

VC is equivalent to in-chamber hearings. The young lawyers surely suffer for not being able to observe matters and learn from arguments being made by seasoned counsels.

I am also informed that by rotation, a maximum of three journalists are being allowed to observe the daily proceedings of the Supreme Court. This restricts the free flow of information and real time reporting of court proceedings. It would be worthwhile to have live broadcast of the VC on a commonly accessed platform.

Advance Preparation

During the course of hearings, I have realized the significance of advance preparation, due to inherent limitations in VC. There is more emphasis on written advocacy and difficulty in team coordination during these times.

In all the VCs so far, the judges have been fully acquainted with the pleadings. The parties have been patiently heard. Yet, based on the written pleadings, the judges initiated hearings with a preliminary view. In a bail application, where the counsel did not annex the relevant documents, the judge adjourned the matter straightway with a direction to the counsel to place relevant documents.

A well-prepared submission is also essential due to the limited attention span in a VC. The theatrics and drama of a court room hearing are missing. Submissions have to be within the restrains of technology. Lawyers need to be more specific, focused and precise in oral submissions. This makes written submissions/pleadings extremely significant.

During a VC hearing, team coordination is not easy. Unlike in the real court room, the briefing counsel cannot be expected to be sitting next to each other and assist even as one speaks.

In criminal matters, the Investigating Officer is expected to be present in the Court with the ‘police file,’ i.e., investigation record. The police file is often relied upon to respond to the Court’s queries. For one hearing, I wanted to have the Investigating Officer connected through phone. The hearing, however, got re-scheduled thrice, and when it started, there was not enough time to get the Investigating Officer on phone. Though it is technically possible to have briefing counsels/clients connected through parallel systems, practically, it is cumbersome.

Thus, advance preparation needs to be as extensive as possible – even better than what the lawyers normally do for actual courtroom hearings.

Technical challenges

There have been few hearings which have progressed without any technical glitches.

In my very first hearing, the link of the judge got disconnected twice. In another instance, a matter was passed over since the judge could not connect. In yet another hearing, connection was not possible through iPad.

Thankfully, I was able to download the application on my laptop instantly and could attend the hearing. In some hearings, the judges have not been visible, but only audible. In some others, it has taken an effort to understand what the judge or the court master is speaking.

As of now, the Delhi High Court has started a Helpline Number “14611” to receive any complaint with regard to deficiency in visual acuity or audibility experienced by participants during the video conferencing proceedings.

However, concrete steps need to be taken for upgradation of infrastructure for seamless interaction during the hearing. The courts should also issue advisories on technical protocols to be followed by lawyers for good connectivity.

The new system also requires the lawyers to be gadget friendly. In one matter, the senior counsel for the petitioner could not join VC. Even as the hearing had started, he got in touch and asked for the court to be informed that he is not able to join. I believe he could not access his briefing counsel either. Subsequently, he did confess his limitations with technology and devices.

The briefs are now paperless. It is important to have a tool/application for quick reference to relevant pages in the brief. I believe that one should connect to VC through one machine and read the brief from another one. If only a single gadget is used, it would not be possible to see the video feed.

Every counsel realizes the importance of eye contact with the judges, which is not possible in VC.

Conclusion

Various institutions abroad have well-developed guidelines on hearings through VC. Even after the lockdown is over and pandemic subsidies, it is certain that VC would be more frequently used in judicial adjudication. Former Supreme Court judge, Justice AK Sikri has also supported holding court hearings is through video conferencing.

It is important that we go through the learning curve quickly, improve the infrastructure, enrich ourselves with technological advancements, and remove the hindrances that VC may otherwise cause in open and accessible justice. It would never be as exciting as a real courtroom appearance, but the current pandemic leaves us with no other option.

Finally, during the VC, the perils of working from home or home-office are bound to happen. In one hearing, as the order was being dictated, from the corner of my eye, I noticed my elder daughter trying to sneak into the office cabin. She was followed by younger one, who had her ‘zoom’ interaction with school teacher. Fortunately, I could mute my audio feed, and wave my hands frantically so that they did not appear on screen. Thankfully, their mother followed soon after and took them away. I am still not sure what the judges thought of my facial expressions!

Amit Gupta is a graduate from Oxford and Columbia Universities and a litigator based in New Delhi. Views are personal.