Can Skype give you 'your day in court'?

I’ve been musing again on the importance of both substantive justice and procedural justice (bear with me).  My trip down this particular mental rabbit hole was prompted by seeing this article which has been circulating on legal Twitter: http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/

In it, a litigation friend gives a fresh perspective on a digital hearing in England.  The hearing was about whether to continue or to stop medical treatment for a patient who would likely die if the treatment were withdrawn.  The article explains how the hearing, conducted via Skype, felt to the daughter of the person at the centre of the case.  Spoiler: it wasn’t a good experience for her. The author of the piece says in terms that she doesn’t think that the outcome of the case would have been any different had it been conducted in a more conventional way.  But the experience for the patient’s daughter would have been very different. 

There’s a lot of academic writing on this subject.  (although I’m doing this from memory as I left my copies of most of it in the office, classified as “there’s no way I’ll want to refer to that during a pandemic”…..) Broadly, substantive justice is concerned with the content of the law, the principles applied to a dispute, the actual outcome at the end of the case.  Procedural justice is concerned with the way the law is applied: the judge should be unbiased, the rules should be applied in the same way to everyone and so on.

There is some empirical research that suggests that procedural justice is at least as important, if not more important, than substantive justice in the perceived fairness of outcomes in court. Put another way, if the process of getting a result in court has felt dignified, unbiased and robust then the result will be seen as fair.  That seems to matter more in people’s assessment of the justice system than the nuts and bolts of what the judge decided should happen.

Let me give a couple of examples to explain why I think this stuff matters.  The first is a case which was primarily about division of assets for a high net worth couple who were divorcing.  The case was resolved by agreement but only at the eleventh hour, almost all stages of the court process having been completed in a relatively high conflict environment.  The result I achieved for my client was undoubtedly a good one.  It was a financial case so I had spreadsheets demonstrating that the outcome was at the favourable end of the spectrum. But there was no sense of satisfaction or relief from my client: rather there was a real sense of unease and of unfinished business.  The negotiation had been conducted entirely by the lawyers on a “shuttle” basis so the couple themselves hadn’t observed any of the negotiation nor had they spoken for themselves.  My sense was that the lawyers had stolen the dispute from the couple and sorted it out ourselves, denying them the opportunity to have their say. The substance of the outcome was good but the process failures diminished the value of that substantive success.  That’s not the ideal basis for a client to begin building the next chapter of life.

The second example is a child welfare hearing I conducted on behalf of a client perhaps as much as ten years ago now, the memory of which still swims around my brain when I’m preparing for court.  I won’t give the details of the case, for obvious reasons.  However, the revelation that still strikes me now is that my client had a positive reaction to a decision of the Sheriff, despite the fact that the decision arguably went against my client.  In the context of making that decision the Sheriff had explained her decision with explicit reference to one of my client’s key concerns. My client’s comment was “I felt she understood why I was worried and she is the first Sheriff who has spoken to me rather than my lawyer”.  Objectively, the decision was not what my client had wanted.  However, she was upbeat when we left the court and able to be very positive with the child about the arrangements that had been put in place for her.  Her sense of being treated fairly and humanely really mattered and would make it much easier for her to support her daughter as the family adapted to parenting apart. 

 So, I think the article that I linked to above raises an important issue for family lawyers as we inevitably move towards remote court hearings. It is easy to be so focused on substantive justice that we lose sight of the procedural justice which can actually be more important to the long terms outcomes for families.  We will need to take conscious steps to preserve those aspects of procedural justice which are not easily replicated from the lawyers’ living rooms.