Senior Reporter
derek.achong@guardian.co.tt
High Court Judge Frank Seepersad has warned attorneys and litigants to be prepared to return to physical courtrooms for trials of civil lawsuits.
Justice Seepersad issued the warning yesterday, as he was forced to adjourn a trial, which had been postponed three times in the past, due to one party and their lawyers not being present in-person at the Waterfront Judicial Centre in Port-of-Spain.
While Justice Seepersad noted that virtual court hearings, which were introduced during the covid-19 pandemic, were still useful for emergency applications and case management conferences, he suggested that such were never ideal for trials that require judges to make findings based on facts established through the testimony of witnesses and corresponding cross-examination.
“The issue that really concerns me is the preservation of the quality of the evidence,” Justice Seepersad said.
“COVID is long behind us. To ensure quick, efficient and fair resolution of matters, trials must be conducted with in-person interaction,” he added.
He noted that in utilising virtual hearings for trials in the past, he and his staff faced numerous technical issues with software and internet connectivity. He also pointed out the difficulties in assessing the credibility of witnesses, who testify from attorneys’ offices or their homes.
“There is no way the court can be certain that a witness is being prompted. These problems are mitigated when we are in a physical courtroom under the control of the court,” Justice Seepersad said.
He noted that they are not permitted to participate from the Judiciary’s virtual access centres that are under the supervision of court marshals and are used for criminal cases.
He said that some participants in the litigation process appeared hesitant to return to in-person hearings after courthouses were reopened after the pandemic.
Stating the virtual hearings are not the default option, Justice Seepersad said: “At the end of day, courts cannot be conducted at the sole convenience of lawyers and litigants.”
Justice Seepersad also suggested the reliance on such hearings has affected the quality of legal representation afforded to litigants.
“This court has noticed a deterioration in the quality of advocacy that is directly related to trials being done on a virtual platform. Advocacy appears to be less dynamic and persuasive,” Justice Seepersad said.
He noted that lawyers lose their ability to detect a witness’ nervousness through monitoring involuntary facial expressions.
“Trials need to be determined in a courtroom with witnesses and lawyers sharing the same physical place,” he said. —Derek Achong
He stated that courts in numerous jurisdictions including this country’s highest appellate court, the United Kingdom-based Privy Council, had already returned to in-person hearings.
He also stated that in-person hearings help promote the legal principle of open justice as members of the public, including media personnel, can have free access.
He explained how he facilitated such access while presiding over virtual hearings.
“There has been some concern as to how the media gets the link. The media gets the link because this court has instructed its JSO to send a link to the media every time it sits. When we’re in a physical courtroom, anyone can walk into a court building, subject to security constraints and pop in and out of a court,” he said.
Justice Seepersad also cited comments made by recently appointed Chief Justice Ronnie Boodoosingh.
Addressing the Law Association’s annual dinner and awards ceremony last month, CJ Boodoosingh said he would prioritise the reopening of such buildings including the Port-of-Spain Magistrates’ Court and the San Fernando Supreme Court.
“The first is the priority of the re-opening and maximum use of court buildings, some of which have been closed for some time,” he said.
Dealing with virtual hearings, CJ Boodoosingh said: “Technology is good, but justice must include in-person human interaction.”
