Technology and the courts

From remote courts to paperless proceedings, the use of technology has changed considerably, and even more so since the pandemic. Is this way of conducting proceedings here to stay?

An update on the use of technology in the Scottish courts, based on the author's experience of a recent patent case | 21st August 2006 | Colin Hulme

Is paper in court a thing of the past?

Perhaps not quite yet – but the first significant steps towards a paperless court have recently been taken in the Court of Session. In June, the Court Service Electronic Service Delivery Unit (ESDU) installed high definition visual equipment in court 5 in the Court of Session. This equipment will enable all parties in a case, from the judge and counsel to witnesses and the public, to view electronic evidence on high resolution screens. The new technology was used for the first time last month in a complex patent dispute and will remain permanently installed in court 5, which has now been dubbed Parliament House’s “technology court”. 

I acted for one of the parties in the patent dispute and now have first-hand experience of the way in which the Technology Court will work. There are more and more cases involving complex intellectual property or IT matters coming through the courts. The new equipment will be a fantastic resource to assist the conduct of these cases. Already, in other jurisdictions such as Singapore, there are  paperless courts where every piece of evidence is displayed electronically. Other jurisdictions also make use of screen capture software and touch-sensitive screens. Clearly efficiencies in the hearing of evidence can be made using this equipment, with the possibility of annotations being made to images on screen and those annotated images being saved as evidence. I envisage that we will have similar methods of conducting litigation in Scotland within the next five or 10 years.

The big picture

This is not an isolated advance in our court system. The ESDU has an ongoing commitment to upgrading court facilities across Scotland, where the use of technology will result in cases being presented more efficiently and concluded more quickly, with resultant savings in cost to taxpayers. Already the next "technology courts" are planned for Edinburgh and Glasgow Sheriff Courts, with the expectation that there will be a programme of rolling out such technology across other sheriff courts in Scotland.

Whilst there are clear benefits to having the technology available for complex civil disputes, it will also be utilised to enable the Scottish Court Service to meet its obligations under new rules designed to protect vulnerable witnesses. By April 2007, the Vulnerable Witnesses (Scotland) Act 2004 will require all supreme and sheriff courts to afford vulnerable witnesses greater protection and support while going through the ordeal of giving evidence in court. Users of this technology will be able to give their evidence from an adjacent room with a live feed being displayed on the new equipment.

The "Technology Court"

The following hardware has been installed in Court 5 in the Court of Session:

• An audio/visual unit which runs the display equipment
• An overhead mounted document camera/visualiser
• Six monitors – four for counsel, one for the judge and one for the witness box.

What follows are observations which may be useful to practitioners following in our footsteps.

Laptop

Parties must provide laptops on which all electronic evidence will be run.  There are connections for up to three laptops at any one time. In the case in which I was involved, both parties shared a single laptop which was used under the direction of counsel.

IT Failure

If presentation of the evidence is dependent on the laptop and display equipment working, contingencies should be made for IT failure. In practice, parties will be able to do little more than have a backup laptop available.

Software

Following on from the use of a single laptop, it is important that the necessary software (including versions of that software) is installed. Various digital photographs on CD-rom, film footage on DVD and computer generated images were displayed in the patent case. During testing of the equipment, we discovered that not all of these discs could be run on the available laptop. In addition, additional software to accommodate audio on the film footage was required.

IT support

Colin Armstrong of the ESDU was extremely helpful in ensuring that the display equipment was installed in time for the patent case. However, it is my understanding that it is not within the ESDU’s remit to provide IT support for the use of the equipment. 

Display screens

The screens are well sited for use by the judge, counsel and witnesses. They are the size of a typical computer monitor and can be seen clearly from the instructing solicitors’ row. Given the distance, the clients seated immediately behind did not have as clear a view.

One advocate commented that he found the picture quality of the screens noticeably poorer than when viewing hard copy photographs. I did not share this view.

Use of the visualiser

This was put to good use by witnesses directing counsel to particular parts of photographs in answering questions. A drawback was that in doing so, a witness required to turn his or her back to counsel and the judge.

Electronic evidence

In the patent case, discs containing evidence were lodged with the court. To move between discs, it was necessary to remove them from the laptop on each occasion – resulting in wasted time. A solution to this would be to use a laptop with multiple drives or copying the electronic productions onto the laptop’s hard drive and creating a shortcut to access them. There would be evidential difficulties with the latter option.

Users

The judge in the case, Lord Glennie, appeared receptive to the use of the technology.  Counsel were equally comfortable with it.

Operator

Both firms involved had an assistant in court each day to operate the laptop under the direction of counsel. This is an additional cost element which should be taken into account.

Conclusion

Avoid queues - book early! It is important that practitioners communicate their technology needs to the ESDU at the earliest opportunity. A phone call to ESDU at the outset of case preparation will allow them to manage practitioners' expectations. Prior to the proof date being fixed, call ESDU to ascertain when the technology court is free to avoid your proof dates clashing with others.

From one perspective, the use of technology adds a further requirement to case preparation if it is to be used to the best effect. However, investment in that element of preparation will bring considerable savings downstream.

A good illustration of the advantages from using technology in court is the Transco prosecution, which made full use of the electronic presentation of evidence. It has been estimated that £500,000 was saved through use of this technology.

This is only the beginning. There is little doubt that the importance of technology in our courts is increasing rapidly. Little development has been made in the last 50 years. We can expect much more progress over the next half century. 

Written by Colin Hulme is a solicitor with Burness LLP and a member of the Court Technology Forum, a steering group to bring together different people and organisations with an interest in the subject.