Justice from the air —
possible impacts of working remotely to the judgments that follow!
Courtroom Proceedings and Boardroom Decisions
A ‘hearing’ in a court is similar to presenting a new idea in the boardroom, nothing less. A member or a team’s idea or work is being ‘judged’.
An ‘examination’ in court is similar to a quarterly review in presence of so called “investors”. The whole unit is being ‘judged’.
An ‘absolute discharge’ is similar to a boardroom decision to continue a loss-making Unit, Product or Project. A team is being given another chance.
The ‘verdict’ in the court is similar to communication of final decision in M&A or Investment Round. It is like ‘pro tanto’ justified.
Examining ‘affidavits’ are similar to reviewing previous year balance sheets and sales projections. The integrity of a business function is being ‘questioned’.
Awarding an “amnesty’ in court is like a boardroom decision to mutually agreed exit from an investor board or a project. Someone is being ‘let go’
Ruling an ‘arbitration’ in court is like a boardroom decision to have a third-party review before project sign-off, a set of completed deliverables are being ‘evaluated’ by non-concerned.
To grant a ‘bail’ in court is like agreeing to a revised next quarter target by Sales Head as compensation for poor performance in previous quarter, someone is being given the taste of ‘consequence as’ a punishment.
Giving a ‘caveat’ in court is like postponing a Product Release for not meeting the criteria, someone is being ‘warned’.
Referring to the ‘chancery division’ in a court is like involving HR to resolve a ‘conflict of interest’ inside the courtroom. Someone’s trustworthiness is being reviewed.
When the judge makes a ‘committal of sentence’ in a lower court, it is nothing less than a Unit Head deferring the decision on a project to in boardroom. Someone is formally seeking involvement of a higher authority.
A decision to pass an ‘order’ in courtroom is nothing less than taking a salary cut decision without consent of staff within the boardroom, someone is being perished of routines.
A ‘conditional discharge’ done by a court is similar to letting an offender or proven theft to be on observation mode for a period vide a boardroom discussion, some is ‘not being punished’.
We will be able quote another 50 comparisons of a courtroom judgement with a boardroom decision making process. So, they can be equated to two sides of a coin. Rest of this essay is examining the perils of remote judgment or rather ‘remote justice’. We use the courtroom’s context to deep dive into possible impacts and relate them to corporate world, as many of the Corporates are perceiving the remote work as no-big-deal or NBD.
Please relate to the comparison with boardroom events, when you read about courtroom proceedings and interpretations cited below.
The context and a Prologue
A court is any person or institution, often it is a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. The system of courts that interprets and applies the law is collectively known as the judiciary. The place where a court sits is known as a venue. The room where court proceedings occur is known as a courtroom, and the building as a courthouse; court facilities range from simple and very small facilities in rural communities to large picturesque buildings in cities.
*Jumping into a briefing from a remote courtroom*
At the start of day’s hearing, one of the Senior Advocate, appearing for Bhushan, requested the Court to adjourn the hearing in light of the review petition intended to be filed against the Court’s August 14 verdict.
However, Justice said,
“If that can be reviewed, this (sentencing) can also be reviewed.”
Sr. Adv. then responded,
“If that (conviction judgment) is reviewed, then sentencing will become infructuous.”
One of the Justices went on to point out that in the recent case of Vijay Kurle, the Court had rejected such a request. Justice added,
“In the event we decide to impose any kind of punishment, we assure you that it won’t be in operation till the review is decided. Don’t worry, we will be fair to you… Even if you are not fair to us.”
Noting that the review petition was yet to be filed, Justice suggested that it appears that the review will be sought when one of the judges on the Bench has retired. One among Justices retires on September 2.
However, Sr. Adv. said,
“Review can be filed within 30 days. Let the impression not go that review will not be filed till Justice Mishra retires…Every order of Justice Mishra can be reviewed, but that does not mean that review has to be filed before Justice Mishra retires. There is a statutory limit of 30 days.”
Sr. Adv. went on to add,
“Heavens are not going to fall if the sentencing is deferred till the review is decided. It is not provided in the law that it has to be decided by the same Bench.”
Justice said in response,
“A sentencing is a continuation of him being found guilty. Will it be appropriate if another Bench decides on sentencing? Suppose I was not demitting office, then would it be appropriate for another Bench to decide on sentencing?”
The Bench eventually made it clear that it would not defer the hearing.
Another Senior Advocate then said he was not in favour of deferment of the hearing. He said,
“I just want to say, at the Bar, we take our judges as they come, we don’t go Bench hunting. It is immaterial if a judge is retiring.”
*end of an incomplete briefing*
Above quoted is the possible transcript of one of the Virtual Court proceedings, this is the much debated suo moto contempt case against Prashant Bhushan. While that could be a most usual or typical argument taking place at the Supreme Court, observations from a naive and curiosity angle are
· Would the above conversation be exactly same, if it were to be in the physical court room?
· would the focus be more on what is being said just before rather than the merit of the case?
· would the answers be as inexplicit as above in the face-to-face and physical presence?
Rest of this essay is with ‘no’ or ‘probably no’ as the answer to above assumed questions. Premise is about the on-premise mode vs across the video-conference happenings.
Judiciary as a System — what makes it different?
“Well you’ve got to show respect to the people who are in court. You’ve got to be fair to them and you’ve got to ideally let them know that you make them appreciate that they are important, that their stories are important, that they are being considered — but you’re going to disappoint some people, they wouldn’t be here if they were all happy with the way things were. I mean, that’s again part of the need for detachment.”
From an interview with a Judicial Officer
Role of the Judge
As impartial decision makers, judges perform a crucial role on behalf of the society. By presiding over the courtroom, its proceedings of fair trial, appropriate interpretations and applications of the law and thereby leading to the impartial decision making. Legitimacy of the courtroom as an institution is predominantly governed by the image of the judge, culturally reinforced by their role, authority and neutrality.
Courtroom
A Courtroom is the place where one will experience controlling the conduct of proceedings from any or all contexts. Proceedings to justice as it is typically called, the court proceedings make everyone conduct themselves at appropriate levels of respect to each other around. The authority of the judge is what instils these recognitions with no qualms whatsoever.
Authority of the Judge over Courtroom
Directing things rather than collaborating by intervening to disallow improper, bullying or harassing questions or when a witness becomes too timid to continue giving evidence. Making such an assessment requires the exercise of a fine judgment, for example, as to whether a witness appears distressed, is genuinely distressed or whether that distress is the result of having their credibility successfully challenged. Conveying Authority; courtroom proceedings also convey adequately the authority of the Judge
Demeanor
The demeanor judges display must meet the normative demands of the judicial role within the practical constraints of long case lists, considerable time pressure, and unrepresented parties. Some demeanors entail detachment as communicating impartiality, which may maximize formal institutional legitimacy, while others appear to value engagement, which supports more relational concepts of legitimacy.
If we consider witnesses, the critical observations arising from physical appearance serves as most important expressive functions for judgment.
Above said are only a few relevant aspects that makes the judiciary function in the way it has been functioning — relevant to the PoV of assessing effectiveness of such a system becoming functional through non-premise mode.
While we all are aware of the contexts that lead to the initiation of remote court proceedings, let us have a quick round up on how things happen worldwide.
Virtual Court Proceedings — how they are being done?
“I apologize for the background,” he told Judge Vince Chhabria. “I was at a Zoom happy hour and I don’t know how to get it off. It is a beautiful Kansas sunset.” Chhabria cracked a smile. “Kansas sunsets are perfectly welcome here,” he said. The Verge Reported in April 2020
Court proceedings have been powered by technology for quite some time now. In US while the Supreme Court uses the technologies abreast, had reservation in vide recording the proceedings. However, the rest of the cascading courts are on ODR (Online Dispute Resolution) System, Zoom and more. In UK, there exists a complete court automation software since very many years (LOCCS). The supreme court proceedings are telecasted live, hearings have been made “virtual” since lockdown, Australia, Singapore were already on cyber courts and video conferencing for many years now. International forum on Online Courts exists and has had several successful events attended by 300+ members and 26 countries participating. The forum promotes and emphasis use of technology in the virtual courts, ODR systems and more.
We all have read the US Congress grilling Big Tech story, which is an example of technology in use for hearings and arguments. Come COVID19, courts are using Microsoft Teams, Zooms and Webexes to ensure justice is being served in spite of lockdown and stand still. In India e-courts, tele-justice initiatives and virtual court proceedings have been gaining momentum, in spite of the volume (15,000 Courts and 2500 Court Complexes). It is evident that judiciary is being promoted a system which can be managed remotely, worldwide.
Impact of Remote Judgements
While the benefits remain undoubtedly of statistical appeal, we could also list a bunch of positive effects like the faster relief to complainants who deserved justice, faster completion of those good initiatives which were blocked by ill-intended suits and writs and so on. Many of long trending vows to judiciary also are partially being solved like backlogs waiting justice, witness tampering, killings in connection to being witness or plaintiff, changing of people at the key roles in judiciary demanding re-examinations and many more.
However, from a systemic level, let us examine the impacts to those differentiators we discussed in the beginning of this essay.
Role of the Judge in a virtual courtroom — the Judge’s defined role, drives the overall degree of engagement across all the relevant stakeholders. That Role decides the communication strategies to accomplish legitimacy of the proceedings. While implementing the therapeutic approach to justice, the role becomes significant and hallmark. When it is relevant in the context of offenders or witnesses who behave indifferently or rudely, Judge’s interactional and personal skills solely put things into order. Cultural image of the judge also does influence in such cases though.
Articulating the Judge’s above cited role like how it comes by default inside a courtroom, is highly unlikely in video-conferencing or virtual courtroom. Applications, be it video conferencing or remote coordination are yet to consider the cognitive factors which otherwise is managed well in a physical environment.
The scene in a physical Courtroom can never be compared with a virtual conference system. Courtroom in its made-up infrastructure and settings, ensures that everyone, irrespective of which part they belong to, be among the judiciary, law enforcement, plaintiffs, witnesses, audience or court support staff. Everyone falls in their place and premise when the “all rise” announcement happens. In the old, old days of England’s royal courts the judge entered carrying a Bible, thought to be the very law itself. So, people stood to honor the Bible and show respect for the king or queen and for the man personifying it at that moment.
Official elevated seat on the judicial dais fosters an optimal distance between bench and participants. Robes, wigs and jabots all make up the courtroom atmosphere conducive for facilitating the trust on judiciary. Video conferencing applications will take more time to impose a similar Judge above all and respectful context. Court etiquette, the customary code of polite behavior among the members present in the court, is a challenge in the virtual scenario. If we refer the context of Prashant Bhushan case cited above, we could notice glimpses, however the full transcript of the same will definitely reflect the complete absence of the ensuring the “conduct” of court proceedings.
“Etiquette inculcates a feeling of trust and loyalty in the individuals. One becomes more responsible and mature. Etiquette helps individuals to value relationships” — we will miss this perspective in Virtual Courtroom.
Now if we consider the authority of the judge, its criticality in the judiciary proceedings, the challenges posed by Virtual Courts are surmounting.
Gavel — meaning as in, “a gavel may be used in meetings of a deliberative assembly. According to Robert’s Rules of Order Newly Revised, the gavel may be used to signify a recess or an adjournment. It may also be used to signify when a member makes a slight breach of the rules. Gave is also used,
· to attract attention and call a meeting to order
· to restore it when breached in the course of the proceedings. (Tap the gavel once, but vigorously).
· to be handed over to successors in office or to officiating officers as ceremonials, etc. (Always extend the holding end).
In a Virtual Courtroom, virtually nothing currently can replace the Gavel!
In Zooming, the demeanor of the Judge is also heavily compromised. The judges deliver life changing verdicts on behalf of the society the represent, and that signifies the authority of the Judge who delivers that. So, such an authority enjoys the reverence and hence needs to maintain required demeanor, irrespective of physical or virtual court.
Judge does an important function of communicating the final verdict, including punishments especially in criminal sanctions. The Judge needs to be leveraging the communicative theory of punishments. Legal punishment is pro tanto justified because it communicates the censure that offenders deserve for their crimes. It is arguable that for serving sentences court may only choose physical platform as against virtual platform, however the very discussion points on this essay are the possible perils of remote justice.
Virtual court system will end up abstracting the non-verbal cues as in postures and gestures. Demeanor & testimony is the combination for fairer assessment of witnesses and plaintiffs. So, demeanor remains a missing element to be enabled vide VCs and help remote proceedings.
There are more angles, aspects and attributes of judicial system and the way justice is ensured in physical courts but challenged when done remotely. Same intensity of connectivity across, uninterrupted power & bandwidth supply, overcoming streaming challenges, overcoming unrecognised etiquettes to cite some.
The ‘tomorrow’ and an Epilogue
Summary note is that, before adopting remote court proceedings beyond COVID19 pandemic related constraints, there should be deeper preparations, infrastructure support, policy re-definitions, as compared to a simple guideline and circular.
Compare the role of judge with a moderator or a CEO or a leader who is supposedly in control of the situation under discussion at a boardroom. Compare the courtroom with corporate policies and norms. Compare the authority of the judge with the trust the leader should have earned to be considered a leader. Compare the demeanour of judge and witnesses with the attitude of management and contributors to decision making. Compare the arguments that happen in court as exchange of ideas. Compare the seating arrangements in courtroom with how the boardroom articulates its real estate the gathering for decision making. Compare the etiquettes to the behavioural aspects that leads to an ego-less boardroom discussion. Compare the gavel with gesture of drawing attention with a visual or standing posture or writing on the whiteboard to bring down the animosity. Compare the oath as the integrity of participants in the boardroom. All these are relatable and interpretable to derive the learning.
Within the Corporate World, for those who perceived that ‘lockdown’ is easily manageable and assumed will commensurate by technology, remote working, WFH etc., a cautionary note is the analysis above. We simply need to rethink the whole context above as context to effective decision making, physical presence in boardroom and virtual (voice & network disturbances only) videoconferencing. The more we are going to rely on extended technology for a mainstream activity like exchanging knowledge, information leading to decision making, the more compromises we are going to commit. M&A, Investment, Agreements, Terminations, Design Conclusions, User Acceptances, Project Kick-off’s, Reviews and more Corporate decisions are being made fully on VC mode. However, the technology is barely meeting the surface level needs only for the same to be continued for more time. We must slowdown, think about those critical decisions which needs face-to-face interactions, heated arguments, the kinesthetics like shake hands-hugs-raised hands etc. We probably would want them to continue the way it used to be!
One another critical point of view here is that, above said perils of Judiciary as a System might even get “misused” by the set of manipulators and seasoned offenders. Recent developments that happen around are indicative of such farce-minded court-martial exercises like, challenging higher courts to be convened against lower court decisions, reciprocating a political allegation or criminal sounding issue by filing super quick writ petitions etc. A profound, robust, vintage and trustworthy ‘system’ is being compromised citing constraints of a pandemic, technological advancements and so called
Let us not float justice through the air! Let us preserve its sanctity.
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References:
1. Few possible Futures for VC Applications
a) Gavel effect
b) Appearance of Judge (visual effects of elevated dais, courtroom, lady justice etc.) — Augmented Reality may help here?
c) Visual cues based on real facial expressions as in witness of plaintiff video camera, but viewable only to the judge
d) A new role other than presenter or moderator inside VC application that of a courtroom assistant who manages the show for the judge efficiently.
e) Commissioning the oath with all sanctity of physical act in courtroom
