Digital court hearings

by Sigurd Holter Torp


Blurred green plant
The upheavals caused by coronavirus have also spread to the courts themselves. This has led to cases being postponed or to being held as written hearings, but also to cases, on a temporary legal basis, being held digitally as remote meetings. Interestingly the experience of these remote meetings have been so favourable that the Norwegian Parliament has now adopted permanent legal rules that will allow for court hearings to be held digitally to a greater extent.

Schjødt has conducted a considerable amount of court hearings remotely. These have included planning meetings, court mediations, main hearings before the District Court, appeal hearings before the Court of Appeal and even hearings before the Supreme Court. Although we were initially somewhat skeptical of such remote court hearings, our experience has generally been good.

At Schjødt, we have set-up our auditorium to replicate an almost exact copy of a courtroom with a lectern and benches. There is a camera pointed at the counsels in front, as well as two large screens showing the other participants. The judges do wear robes, but this has been optional for the lawyers. The parties log on at the court's instructions, and then all participants are present with audio and video. Those who do not have the floor mute their microphones to avoid disturbances. All parties have access to the case documents, factual and legal abstracts, and outlines on iPads, and the person who has the floor explains what is to be consulted.

This has proven to work excellently. With a few exceptions, sounds and images have been clear, good and direct without stuttering or delays. You get the experience of being in the same room, but with the advantage of being in the office if something needs to be checked or if there is a need to confer with other lawyers during breaks, etc. Another advantage is that you can discuss the case when your microphone is muted whilst another participant has the floor. Party and witness statements also work well because the sounds and images are clear and direct ensuring that the experience is close to what would have been the case in a courtroom.

Our positive experiences with digital court hearings have been the same throughout the industry. The courts and other players have given feedback that most want more use of digital solutions in the courts even after the pandemic. There is better equipment and higher digital competence among the players.  Consequently, on 3 June 2022 the Norwegian Parliament passed permanent amendments to the Norwegian Dispute Act in order to open up digital court hearings to a greater extent. The amendments to the Dispute Act are based on the basic premise that court proceedings in Norway in general shall be held in a hearing with the participants physically present. At the same time, the Norwegian Parliament believes that the time is ripe to make the regulations more flexible than before in order to ensure appropriate, modern and efficient court proceedings. The traditional premise that court hearings are to be conducted as physical meetings is therefore continued, but it is possible for court hearings to be held as remote meetings to a greater extent than before.

The requirement that both parties must consent for a court hearing to be conducted as a digital remote meeting is now removed. Instead, a rule is introduced in Section 13-1 of the Dispute Act that the court may decide for a hearing to be held as a remote meeting when appropriate and justifiable, but where the parties' views shall be given great emphasis.

According to the preparatory works, the requirement that a remote meeting must be "appropriate", means that the court must consider specifically whether a remote meeting is a good and effective alternative to a physical meeting, especially with regard to the costs and disadvantages of physical attendance. Since physical court hearings are still the main rule, there should be specific circumstances or assumptions where a hearing should be held as a remote meeting. Such circumstances could be where an attendee has totravel a long way or where it is to be a brief meeting suitable for remote meeting. Therefore, whether cases and court hearings are suitable for a remote meeting depends, inter alia, on what is to be discussed in the meeting, the parties' views and the complexity and scope of the case. If the costs or disadvantages of a physical meeting are large in relation to the significance of the case for the parties, this is normally a weighty argument for a remote meeting.

It is a prerequisite for holding court hearings as a remote meeting that the public and the press should have the same opportunity to follow the court hearing as they otherwise would. A new provision is therefore introduced in the Norwegian Courts of Justice Act that the court may, on more detailed terms, decide to stream court hearings in public. The amendments entered into force on 1 July 2022, at the same time as the temporary rules were repealed.

Our experience indicates that there is no need to be skeptical if it is proposed or decided that a case should be conducted as a remote meeting. On the contrary, this may be appropriate, especially if it is a small and uncomplicated case and the alternative is a long postponement. At the same time, it is clear that certain types of cases are not suitable for remote meetings, for example if it is a complicated technical case where you depend on the judges to understand complex details, if there is physical evidence that needs to be presented and explained, or where witnesses are questioned and their credibility is absolutely crucial.

Our experience is that digital court hearings can work well, but that this does not apply to all cases. For each case where a remote meeting may be relevant, a thorough and concrete assessment must therefore be made of whether it is suitable for this or not.

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