Tuesday, November 30, 2021
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Courting a Virtual World

During the pandemic, case disposal rates have remained relatively high in courts in the US, while in India, they’re hampered by data security concerns and decreased digitisation and e-filing capabilities. By Blake Candler

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Physical distancing measures to mitigate Covid-19 have significantly disrupted the judiciaries of both the US and India. Courts are strained by an increased case backlog during or immediately after pandemics, as they receive more cases and are less able to process them.

The rate at which courts process cases, known as disposal rate, decreases as in-person courtroom procedures are interrupted. Disposal rates have remained relatively high in the US while they have plummeted in India. The successful implementation of virtual courts in the US largely accounts for that difference. While beneficial to disposal rates, virtual courts also face many challenges, including data security and privacy, connectivity and remote access to files and accountability to the public.

Access to justice provided by a functioning judicial system is critical to maintaining the rule of law, especially during a pandemic. While India’s Supreme Court normally disposes of as many as 3,500 cases per month, from March 23 to April 24 this year, it only completed 215 cases. Ever since the lockdown began, urgent new cases are pending in the Supreme Court that are fundamental to the existence of hundreds of thousands of India’s migrant labourers. They have walked hundreds of miles to try to reach their homes, only to be blocked by sealed interstate borders. New York State courts, on the other hand, settled 2,600 cases in their first week of working remotely.

Pandemics are expected to boost the incoming caseload. Public safety interventions may cause more protests and nuisance complaints. Economic decline increases cases related to bankruptcy, employment, securities, consumer protection, public policy, media and entertainment, cyber-security and data privacy. Courts allowing for adopted electronic filings have seen an increase in number already.

For example, the US Bankruptcy Court for the Northern District of California suspended the requirement for a physical signature of a debtor to allow for e-filings. In contrast, the number of cases filed in Jharkhand’s High Court has declined from 400 per week to about six per month, most of which are criminal. Criminal cases filed in Jharkhand High Court still require physical signatures, while civil filings have an exemption to allow for signatures to be provided once regular court resumes. Courts unable to facilitate e-filings will likely see a large spike after they reopen.

Courts have been forced to get creative to continue administering justice in a socially distanced society. The drug court of Daviess County, Kentucky, for example, experimented with drive-thru operations before shelter-in-place orders were implemented. Other courts have been experimenting for decades with teleconferencing and video depositions in lieu of live witnesses. Beyond select cases (many in the criminal courts), which have been prioritised for in-person hearings, three primary solutions have emerged as alternatives to these proceedings: virtual courts, arbitration, and pre-trial negotiation.

Virtual courts are now the primary venue for the majority of legal proceedings in both the US and India. They have the potential to greatly reduce case backlogs. Some believe virtual courts are the way of the future, as “more people in the world now have internet access than access to justice”. Alternative dispute resolution (ADR) is also becoming a more popular substitute for courtroom proceedings. Litigants who would otherwise wait for months, if not years, while their cases are in court backlog queues have become more receptive to arbitrators settling their disputes. ADR may also reduce court workloads, which is crucial during a pandemic. Pre-trial negotiations are a third option to eliminate or reduce the scope of trials. With both plaintiffs and defendants sharing a newfound interest in avoiding going to trial, negotiations prior to trial and possibly even before filing suit may become more likely to resolve disagreements.

US courts have been able to utilise teleconferencing tools much more than Indian courts due to a variety of factors. The US had already significantly prepared for a pandemic, including having procured many communication tool licences for virtual courts. With a rule of law rating three times worse than that of the US, according to the World Justice Report, India’s more bureaucratic judiciary may have been slower to procure teleconference licences, despite its effort to accelerate its public procurement mechanisms in reaction to Covid-19. “In response to the increasing volume of essential/emergency matters being brought before the New York City Family Court, the court increased its number of ‘virtual’ courtrooms from three to five,” on April 9, 2020, according to the NY State Courts website. At roughly the same time, the Jharkhand High Court allowed for only two of its 12 normally operating courts to continue virtually, due to concerns of its online system crashing.

There are many challenges associated with hosting trials online though, including cyber attacks, data and privacy, unwanted disruptions and reduced transparency of the courts. An incomplete digitisation of case files along with concerns of data security has reduced India’s success with virtual courts. Inability to e-file and share evidence and other documents further block virtual court adoption in India.

The transition to Zoom as the primary platform for US courts, including the Supreme Court, has not been seamless and is still overcoming many obstacles. Although Zoom has successfully managed cyber threats, virtual courts are less transparent than in-person courts. Court watchdog organisations, such as the Marshall Project, complain that they have limited access to observe virtual trials due to connectivity issues and not being invited by some judges. Watchdogs claim that judges set lower bail when held accountable by the presence of court watchers. Closed courts threaten the constitutionality of proceedings as well as the perception of rule of law. Transparency is critical to courts remaining accountable and unbiased. While there is admittedly less access to trials for observers due to connectivity challenges and other issues, there is certainly more access than if cases continued to only be held in-person during stay-at-home orders.

India’s trial courts have been overwhelmingly closed and are slow to use technology to hold trials remotely. This slowness is partially due to gaps in cyber-security that are understandably exacerbated by the surge in remote working and by the rapidly implemented IT infrastructure for virtual courts.

A petition against the use of video-conferencing applications by Indian courts was filed in its Supreme Court, based on the argument that the applications currently used, primarily Zoom and Vidyo Mobile, are owned by foreign companies and threaten national security. Insufficient connectivity and bandwidth to simultaneously operate multiple courts also seriously reduce India’s capacity to hear cases.

Access to and transmission of electronic documents remains perhaps the most serious obstacle to virtual courts in India. Attorneys arguing in the Jharkhand High Court, for example, are unable to remotely access electronic documents, which the Court has stored, because of its cyber-security concerns regarding its software.

An exceedingly high number of court files in India remain to be digitised. In 2019, the High Court of Calcutta, India’s oldest High Court, began a three-year mission to digitise its 860 million pages of case records. Digitisation of case files should accelerate case disposal rates, particularly for virtual courts, which are otherwise unable to access such records.

While less than perfect, virtual courts help maintain the rule of law by increasing case disposal rates. During a pandemic and thereafter, teleconferencing judicial proceedings offers many benefits for the judiciary, litigants, and the public. Virtual courts offer time and money savings by reducing commute time to the courts and wait time there. Electronically enforceable time limits on hearings through scheduled time slots may instil more disciplined time management.

Warrants and stays of proceedings may also be transmitted remotely, saving lawyers and law enforcement agencies days of waiting for critical documents and accelerating the judicial process. All factors allow virtual courts to increase court disposal rates.

Virtual courts are by no means a panacea. They present a variety of challenges and limitations, including data security and privacy concerns, the need for digitised files and the threat of reduced accountability. Perhaps the greatest challenge to virtual courts is the lack of emotional and intangible sensory connection enabled by physical proximity.

While initial hiccups are to be expected in any abrupt transition, a less-than-perfect solution is better than no solution. The rule of law may diminish without the adjudicating presence of the courts during a pandemic. Virtual courts are essential to stability during a pandemic and present a viable option to continue to increase disposal rates even during normal times.

—The writer is an International Program Specialist for the Commercial Law Development Program within the US Department of Commerce. The views expressed here are personal and do not necessarily represent the views of, and should not be attributed to, the US Department of Commerce or the Commercial Law Development Program

Lead picture: US Supreme Court

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