Remote Working and the Legal System: Zooming in on the Pros and Cons
The COVID-19 pandemic has forced courts to function remotely and lawyers to work from home all over the world, either for short bursts or extended periods of time. Of course, this is all necessary to keep everyone involved safe. However, as working from home continues to be the new normal, lawyers and law students should consider the particular advantages and disadvantages it poses to the operation of legal system.
Arguably, working remotely increases access to justice. When lawyers are able to attend meetings and court hearings from home, the expenses of travel time and accommodation (which would ordinarily be paid for by clients) decrease significantly. As a result, lawyers can work more efficiently, reducing the exorbitant costs of legal services that often bar people from obtaining legal assistance. Additionally, with courts operating remotely, court costs – paid for by taxpayers – are reduced, with less money needing to be spent on operating court facilities when judges can conduct hearings from their computer screens. There is the potential for the money saved to be redirected to measures that increase access to justice, such as funding court-sponsored legal aid clinics or advice hotlines.
On the other hand, virtual and remote court hearings can have a negative impact on access to justice. Lawyers from smaller firms, NGOs and less prosperous backgrounds may lack the technology, stable internet connections and other resources (such as professional-looking Zoom backgrounds) that larger firms can provide. These issues can reflect poorly on perfectly competent lawyers, and in turn negatively affect outcomes for the parties represented by these lawyers (who are themselves likely to be more disadvantaged than parties represented by large, expensive firms). Judges and court staff should be conscious of this and remember that it is the quality of the arguments that matter, and that lawyers are not necessarily being deliberately unprofessional if their camera is a little fuzzy or their internet cuts out. These considerations are something that should especially be taken into account when it comes to self-represented litigants or people who are unfamiliar with how to use the necessary technology. Courts and Bar Associations can work to address these issues by providing free online courses and guidance on how to use essential software. Courts, Bar Associations and Legal Aid/Community Organisations should also offer assistance to those who do not have the right technology to participate effectively in hearings, for example, by providing low-cost rented computers or socially distanced workspaces with computers in courthouses for litigants to use.
We have the technology to operate remotely - we just need to make sure everyone can access and use it!
Another concern is that individuals appearing in virtual hearings may engage less with judges and juries, mostly because in-person interactions are missing and could emerge as less sympathetic or less credible. For example, some studies have suggested that remote immigration hearings resulted in higher rates of deportations, that virtual criminal hearings resulted in higher bail rates and that juries tend to find in-person litigants more credible. These issues could be alleviated by Courts and Bar associations actively working to increase awareness about them and providing guidance and training to everyone involved in the legal process. For example, if judges and juries are made aware that people can be perceived more negatively when viewed over a computer screen than in real life, they are might be more conscious of this and more able to check their biases before making decisions. Similarly, litigants should be reassured that hearings, although remote, are fair court hearings and should be encouraged to engage just as they would in person.
On the bright side, the judge can't do this to you anymore either...
There are also concerns about the effect digital hearings will have on open justice. It is a fundamental principle of democracy, access to justice and freedom of information that there is transparency in the way justice is done and court processes conducted. Open justice requires that court hearings do not operate under a veil of secrecy. In the haste to move hearings to online platforms, public access has understandably often been a secondary concern. For example, when hearings require individuals to dial-in or login-in to, these hearings are often effectively blocked from public access. However, there is no reason why courts cannot address this issue by ensuring that the technology used allows for public access by creating channels which stream court hearings and providing media access to virtual hearings.
Remote working can also be a good thing for the legal system by encouraging diversity in the profession. Lawyers and those who may ordinarily struggle to attend hearings and meetings, or who are generally unable to spend long hours in the office – for example, due to a disability or family caring responsibilities – might now find that the flexibility provided by remote working means they are on more of an equal footing with their colleagues. These new possibilities brought about by necessity might have broader, positive ramifications for the legal system, making a more significant and diverse number of lawyers available to individuals who need legal assistance, and normalising remote working
However, this cuts both ways. There have been numerous news reports, studies and opinion pieces in recent weeks indicating that women who work from home during the pandemic are now actually - shouldering more domestic responsibilities than before, due to the blurring of lines between work and home. For example, some families are finding it increasingly difficult to balance childcare responsibilities with work commitments since they now share their workspaces with their children. A recent paper by the Council on Contemporary Families has discussed this issue:
On the one hand, telecommuting can ease work-family conflict by giving workers greater control over their schedules. Mothers of young children particularly value telecommuting, and flexible work has been linked to higher rates of maternal employment... Fathers also report that they would like to be spending more time with their children, so working from home could be a way for fathers to increase their share of housework and childcare. For many working couples, then, telecommuting may be an attractive and egalitarian strategy for managing the competing demands of work and family.
On the other hand, telecommuting can worsen rather than ameliorate gender inequalities in the home and in the labor market. Workplaces provide a barrier, both physical and psychological, between parents and demands to do additional childcare and housework. Social pressures to spend intensive time on child-rearing and on housework are much stronger for mothers than fathers, and once the separation from home life provided by workplaces is removed, this may lead mothers to increase the amount of household labor they do by more than fathers. (Council on Contemporary Families, “Before and during COVID-19: Telecommuting, Work-Family Conflict, and Gender Equality” (August 8, 2020)).
There are therefore real concerns that working from home may exacerbate the already ongoing problem of gender inequality in the legal profession. Workplaces need to be aware of this issue and implement ways to maintain work-life boundaries even when everyone is working from home. This could include limiting phone calls and emails outside of regular office hours and providing employees with resources to help them set up designated home offices in their homes.
Imagine doing all this and trying to work at the same time....
There are certainly aspects of remote working and remote court hearings that can increase efficiency and access to justice in the legal system. However, the rapid move to remote working for lawyers and the courts around the world, necessitated by the pandemic, means that there are certainly challenges that need to be considered and overcome. We should all continue to consider how we can use remote working and remote court operations to support and create an improved legal system that is better for everyone who engages with it.