Legal Research

Do Litigants Understand Remote Hearings and What Should We Do About It?

By Heather Douglas

In a study conducted in England, it was found that 4 out of 10 parents involved in a remote family hearing did not understand it (Legalfutures Article). “Two-thirds (66%) of parents said they believed their case had not been dealt with well remotely, with 40% recounting that they did not understand their remote hearing ? either partly or at all.” Lay parties had particular trouble in navigating the system, including the technology. Although this is not a Canadian study, I suspect that these findings could easily apply across the pond.

Simply transferring a complicated system from one venue to another does not resolve all access to justice issues. Richard Susskind describes this in his book “The Future of Our Courts” that:

• Today?s courts are over-flowing with self-represented litigants.
• Exacerbated by the fact that the workings of the courts seem to be indecipherable to all but lawyers.
• For everyday legal issues, the language and process of the court are excessively complex and antiquated.
• The law of evidence, the rules of procedure, knowledge of substantive law, oral advocacy, practice, are too complex and esoteric in its current form for self-represented litigants.

Susskind recommends that online courts provide legal information along with facilitating dispute avoidance, dispute containment, and dispute resolution.

Susskind predicts at least two stages for online courts. The first generation of online courts would involve a human judge delivering their decision through an online platform and arguments and evidence submitted through an online service. In this context, court users would be able to explain their grievances in ordinary language and have the judge invite further details to help shape the case. The second generation of these systems could be made by some form of artificial intelligence.

Movement towards virtual hearings is a good step towards improving access to justice. However, we need to keep pushing forward and incorporate more educational resources into the process. These educational resources should be in plain language, including images.

(Views are my own and do not represent the views of any organization.)

Full post as published by Slaw.ca on October 28, 2020 (boomark / email).