The effects of the COVID-19 pandemic have been vast, not least of all in the development of digital communication all around the globe. It is now the norm for enterprises large and small to go online, working from home, holding meetings virtually by Skype, or Zoom, or TeamViewer, and rarely, if ever, speaking with their colleagues face to face. It’s easier, cheaper, and far more convenient, and business leaders everywhere have heralded the virtual communication revolution as the brave new world.
Predictably, we lawyers have embraced the new technology with gusto. The once bustling confines of the courtroom, filled with busy lawyers and their clientele, have now been transformed by the use of chorus-calls and video-link appearances, allowing many legal counsel to avoid ever leaving the comfort of their cosy office space to appear in court. Some jurisdictions have even radically adapted to accommodate completely virtual hearings, all in the name of conserving cost and convenience. But is the net gain really an improvement in the service we provide?
I recently had the rather disconcerting experience of cross-examining a crucial witness in a criminal trial who was giving evidence by audio-visual link. As usual, despite the mighty resources of the Crown assuring us state-of-the-art technology, half the time the audio was poor, the vision was imperfect, and seemingly whenever things got torrid the wily witness was apt to complain he didn’t hear the question, could I please repeat it. Unfortunately, the experience was far from unique.
For some time now, telephone evidence by medicos and other expert witnesses has been the norm rather than the exception in Queensland courts. The practicalities of that concession will be obvious, but still, the practice doesn’t always turn out for the best. In one trial, where I represented a defendant charged with two counts of assault occasioning bodily harm, the doctor who treated both complainants gave his evidence by telephone to a background soundtrack of traffic noise, honking horns and the ticking of his car indicator, leaving no doubt he was – or should have been – paying more attention to his driving than his evidence. I was reminded of the good doctor’s evidence some weeks later when I saw television news footage of another medico in Sacramento, California who, in defending a traffic infringement, joined the court hearing on Zoom while performing surgery on a patient. Not surprisingly, the presiding Judge promptly terminated his appearance.
That clanger came just a few short weeks after another disastrously humorous case in America (where else?), when video emerged online of Texas attorney Rod Ponton, who appeared at a virtual courtroom hearing by Zoom before the 394th Judicial District Court in Texas, as a cute little blue-eyed cat. The avatar was a special effects option (known as a filter) he had inadvertently activated on his home computer, and was unable to turn off.
While many saw the funny side of Mr Ponton’s blooper, the cute little blue-eyed cat was nonetheless a timely reminder to us all that sometimes, while our infatuation with technology can be funny and intriguing, it doesn’t always advance the interests of those we serve. The essence of good lawyering is effective communication, and so often there is simply no form of communication that can trump talking face to face, watching the words spoken, interpreting the body language and gauging the reactions.
In this modern world, the legal sector, like all others, must strike a balance between what can be changed and what should be changed. Cost, efficiency and convenience are all vitally important, but in the end, the ultimate goal of any justice system is nothing short of justice itself.
Jonathan Nyst, Queensland Criminal Lawyer