In a Tai Chi exercise, two people stand face to face, each with one palm outstretched an inch or two apart. One person moves their hand and the other seeks to follow it wordlessly. The exercise is designed to produce a feeling of the energy flowing mysteriously between two people. I was reminded of this exercise when reading Meredith Rossner’s article on remote courts which moves deftly between the sociology of co-presence, ritual, and entrainment, which is “the synchronization of mutual attention, emotion, and behaviour,”1 to test the potential of virtual justice.
Rossner argues virtual courts can “translate,” improve, and sometimes “completely reimagine” court ritual. The article illustrates some paths to be taken between tech evangelism and traditionalism. It shows how thoughtful and well-researched court design can (sometimes) allow remote justice to emulate and improve upon physical courtrooms. Material and symbolic court rituals can be translated into virtual contexts in ways more egalitarian and inclusive than the austere grandeur of higher courts and the dilapidated functionalism of everyday courts.
The piece challenges physical essentialism such as the idea that significant aspects of courtroom rituals are diminished when moved to a virtual space.2 Physical co-presence is not a necessary feature of successful communication. The online hearings studied, well-designed and managed, were not inherently “dehumanizing, hard to follow, and plagued by disruptive technology” (p. 339). Nor were interpersonal dynamics necessarily diminished in the remote context (a contrast Rossner makes with more coercive and exclusionary approaches taken in criminal justice environments).
Rossner’s article is based on two empirical studies of virtual courts. One was an evaluation of a real online pilot in tax, civil, and family hearings in England and Wales.3 In this study, 41 hearings (some not online for comparison) were observed and 90 interviews were conducted with parties, lawyers, and judges. The second study was more innovative, involving a large simulated criminal trial before 445 mock jurors.4 “Working with architects, designers, and engineers, researchers adapted a real courtroom in Sydney, Australia to create a virtual, or what they termed ‘distributed’, court.”5 Mock jurors watched the same trial but were randomly assigned to one of four approaches altering how the accused participated (did they sit with their lawyer and did they alone participate remotely or did all parties participate remotely). The judge and jury sat in the courtroom for each of these. Jurors reported their verdict preferences and assessments of the defendant, witnesses, counsel, and measures of trial dynamics.
In both studies, the process of translating physical hearings into virtual counterparts was apparently not profoundly transformative. Respondents in the studies generally felt that the processes adopted were like courts, just on a video conferencing platform. An aspect of the pilot program’s design was that litigants were brought considerately and carefully into the virtual courtroom through a combination of a managed pathway and court staff support. The piece takes us beyond a critique of fetishizing physical court appearances whilst showing how the quality of the virtual experience relies on the physical (and technical) environment in which virtual participation actually takes place. Participants advised on preparing the space from which they would participate was a marked contrast to the lack of privacy and obtrusive “soundscapes” of some criminal justice contexts of other remote justice experiments.
The intellectual heart of the article evaluates justice rituals using the concept of entrainment. This provides a fresh counterpoint to procedural justice approaches, focused on interaction, turn-taking, and communicative rhythm, evaluated through observation, interview, and survey work. Lay participants in the pilots reported feeling at ease and “in control” in their own surroundings. Mock jurors reported courtrooms were “comfortable, respectful, and welcoming,” and “significantly less isolating.” Juror assessment of flow and rapport were not apparently affected in the (technologically sophisticated) online courts they simulated. Evidence that entrainment is not reduced in a virtual court was suggested too by jurors being no more likely to return a guilty verdict in video vs. in-person conditions. Interestingly, a defendant isolated in a dock in a physical courtroom was most likely to be convicted. In other words, the design of a traditional physical environment seemed as or even more problematic than a shift into the virtual.
Rossner argues that a sense of judicial formality was satisfactorily created through the use of logos, judges appearing from courtrooms, and the behavior of the judge herself, but also through the careful design of managed pathways into online video conferencing hearings. Her data suggests judicial authority was not necessarily undermined by online-ness. A toning down of the austere physicality of the courtroom led to something more neutral and potentially egalitarian. Both lay and professional participants felt virtual court were appropriately formal, although judges were less sure.
Rossner recognizes she is assessing a conservative implementation of virtual justice. The processes, iconography, and video locations are largely based on existing approaches. There is a strong sense, on my reading, that the success of virtual hearings depends on their orchestration by judges. Introductions to hearings, and communication with the parties, were handled with particular care because of the limitations posed by onscreen communication. We do not know if what the researchers observed was judges behaving well for a pilot program or an inherent feature of technology. Like a speed bump slowing a car, speaking to a screen with multiple participants may make communication more careful—better even. Or it may have been that judges were simply being extra careful to demonstrate professionalism since they were new to the online format while also being researched.
The article has a keen sense of the spatial and the sociological, and a balanced yet challenging approach to academic orthodoxies of pro- and antagonists. Rossner elegantly contextualises her findings and the studies’ limitations. The ephemerality of co-presence, difficulties with eye contact in normal video-conferences, digital divides and technological barriers to success are well-explored. Genn’s worry about seeing “court merely as a service rather than as a public, physical site of justice,”6 remains but an emphatic question mark is placed over the word physical. For me, Rossner’s work does prove the potential for physical space to be important—it may inhibit some of the uglier reflexes of bureaucratic justice for instance—but time, individualized communication (good judging!) and public accountability may be more important determinants of justice experiences than physicality.7 Rossner persuasively casts doubt on the idea that physicality is essentially or necessarily superior and that virtual courts are necessarily “spartan, and technocratic” if well-designed and operated.
- See Celeste Campos-Castillo & Steven Hitlin, Copresence: Revisiting a Building Block for Social Interaction Theories, 31 Sociological Theory 168 (2013).
- See Generally Dame Hazel Genn, Annual Birkenhead Lecture, Online Courts and the Future of Justice (2017); Penelope Gibbs, Defendants on Video: Conveyor Belt Justice or a Revolution in Access? (2017); Linda Mulcahy & Emma Rowden, The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (2019); Emma Rowden, Distributed Courts and Legitimacy: What Do We Lose When We Lose the Courthouse?, 14 Law, Culture & the Humanities 263 (2018); Jenni Ward, Transforming “Summary Justice” through Police-Led Prosecution and “Virtual Courts”: Is “Procedural Due Process” Being Undermined?, 55 Brit. J. Crim. 341 (2015).
- Meredith Rossner & Martha McCurdy, Implementing Video Hearings (Party-to-State): A Process Evaluation (2018); Meredith Rossner & Martha McCurdy, Video Hearings Process Evaluation (Phase 2): Final Report (2020).
- David Tait, et al., Towards a Distributed Courtroom (2017).
- Id. at 55.
- Genn, Online Courts and the Future of Justice, supra note 2, at 5.
- See Jessica Hambly & Nick Gill, Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening, 47 J. L. & Soc’y 3 (2020).