A dazzling variety of transformations and innovations has emerged from the combination of internet, artificial intelligence, blockchain and other exciting new technologies. With the burgeoning trend of “internet plus” finding a place in China’s judicial system, a new form of digitised hearing – the online courtroom – has gained a foothold in the mainstream.
However, even after several years of development, the online courtroom experience is still regarded by many as lacking. This article looks at the underlying reasons and explores paths for optimisation.
Know the system
Today, courts at all levels are actively pushing for in-depth integration of litigation services with modern technologies. In addition to online case registration, electronic services and other portable solutions, the movement has given rise to online courtrooms operating under the model of “internet plus trial”.
As the name implies, the online courtroom allows litigants to attend hearings via computers or phone apps without physically travelling to the court.
Low application and uneven development. The number of online hearings remains low when compared to the total number of hearings. Research indicates that, although the novel format has found action in every province in China to varying degrees, the geographical usage gap is quite substantial.
Beijing stands out as by far the biggest user of online courtrooms. This is unsurprising, given its status as the first pilot city. Shanghai and Guangzhou also rank high on the list but the practice is far less popular in less developed areas, particularly western China.
Questionable efficacy. Online hearings frequently suffer technical issues like disconnection, image freezing, sound-image desynchronisation, low volume, screen distortion, a shaky and tilting picture, as well as other difficulties in image transmission and transcript confirmation.
Lawyers may have trouble keeping up with information electronically submitted by the other party, let alone verifying the original evidentiary materials and issuing opinions on cross-examination. To some extent, these issues weaken the substantive purpose of a trial and its effectiveness.
Technical facilities are not yet mature. Equipment and facilities for online hearings are often expensive and incur heavy maintenance costs, which may be financially challenging to courts in relatively remote areas. Regional gaps in financial and technical capacity have led to drastically uneven quality between one court’s internet plus trial session to that of another.
In addition, equipment for online hearings relies heavily on internet connection and mobile signals, and even minor IT glitches can seriously impede the progress of the judicial proceeding.
The “digital problem” remains unresolved. One of the concerns with internet plus trial is the digital divide, which furthers the inequality between litigants. If two sides are polarised in terms of their capacity to digitally participate in the trial, the less-equipped party may find this technical disadvantage almost insurmountable.
Furthermore, an online hearing removes the direct physical connection between the judge and the parties, making it difficult to verify the truthfulness of attendees and authenticity of the evidence.
As a result, online hearings risk sacrificing the meticulousness and rigorous care that traditionally goes hand-in-hand with a court procedure. Deprived of the opportunity to observe the parties’ bearing and gestures, and physical contact of evidence, how do judges determine the probative value of electronic evidence? Can they still tell if a statement is truthful? These are some of the common concerns behind the novelty.
What can we do?
Although current online hearings often fall victim to technical and communication difficulties, there is no stopping the rollout of the internet plus trial model. Based on the authors’ professional experience, litigants can explore the following methods to improve their experience at an impending online hearing:
Visualise electronic material such as flowcharts, timelines and logic mappings. Visualising key issues in a case with charts and tables, and demonstrating that to the whole court via the online system, can effectively help judges organise the facts in a case, and clearly communicate the party’s opinions and claims.
Communicate with the judge about procedures in advance. Online hearings should place greater focus on the facts, and should not excessively dwell on objections over procedural matters such as jurisdiction, service or disqualification. Such matters should be communicated with the judge either in writing or by phone before the hearing.
Ensure sufficient equipment and capacity. Parties are advised to take extra care in ensuring the proper installation of software or applications for online hearing. Any login or calibration of equipment should be completed in advance, and a quiet venue with good internet connection should be picked out.
Prepare two fully charged devices. For preparation, the required software/application can be downloaded and installed on both phone and computer, with one serving as the main device and the other as backup. Should there be any glitches in image or sound, a quick switch can be made with minimal delay.
Last but not least, the litigants and their lawyers should consider the significance, difficulty and complexity of the case, and whether they should agree to an online hearing to begin with.
Online hearings transcend physical limitations and allow litigation to take place at any time and any place, which offers greater options for both the court and litigants. However, an overly aggressive or ill-prepared transition to the cyberspace only hurts the litigants’ exercise of their procedural rights.
It is the authors’ opinion that the dilemma of applying online hearings is closely related to facility and digitalisation issues. While technical innovation in the administration of justice should be encouraged, it should not be accomplished by compromising the core legal functions of the judicial procedure.
Digital systems are known to facilitate governance, which should be applied to ultimately enhance the overall capacity of justice delivery.
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