Courts / Dispute Resolution

This section includes literature on civil and criminal proceedings. International arbitration is listed in the International Law > International Arbitration section.

'Administration of Justice' [2020] (July) Public Law 548-549
Jurisdiction: UK
Abstract: Reviews the Lord Chief Justice's guidance to civil and family courts on the management of hearings and court proceedings during the coronavirus pandemic, a Protocol on remote hearings, priority court buildings that remain open for essential in-person hearings, a 'Message to Circuit and District Judges' in civil and family courts, and an Administrative Justice Council report, 'Digitisation and Accessing Justice in the Community'.
 
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Alexander, Nadja Marie, 'Mediation: The New Normal?' (SSRN Scholarly Paper ID 3742561, 4 December 2020)
Abstract: Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant - her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order for a dispute resolution system to survive, it needs to be agile and adapt to changing circumstances; to evolve - just like a tightrope walker.

Allman, Kate, 'Covid-19: Events Suspended; Hearings Move Online, but Rule of Law Will Continue "to the Extent Possible"' (2020) (65) LSJ: Law Society of NSW Journal 16
Abstract: Courts have suspended face-to-face hearings and asked they be heard via telephone or online in a bid to follow "social distancing" recommendations and stem the spread of coronavirus in NSW.

Allman, Kate, 'Courts: Jury Trials to Resume from 15 June' (2020) (67) LSJ: Law Society of NSW Journal 22
Abstract: After a two-month hiatus due to COVID-19, jury trials will resume in NSW with strict new hygiene measures for anyone attending court.

Allman, Kate, 'Hot Topic: Legal Threat or Mere Puff?' (2020) (66) LSJ: Law Society of NSW Journal 24-25
Abstract: As COVID-19 spreads around the world, some groups have begun looking to the courts to seek legal reparations for the economic and societal damage it is causing. But can you sue a government for a global pandemic?

Anniwell, Brin and Alanna Van der Veen, 'Practice and Procedure: Navigating the New Normal: The Virtual Court' (2020) (67) LSJ: Law Society of NSW Journal 74-75
Abstract: Wherever possible, NSW courts are proceeding with hearings by audio-visual link ('AVL'). Courts have a discretion as to whether a matter should proceed by AVL. In some circumstances, it may be unfair to a party to proceed in that fashion. Just as it is important to employ persuasive techniques in the physical courtroom, so too is it important in the virtual courtroom: prepare and plan accordingly. Know your AVL technology and prepare your workspace in a way that conveys professionalism, minimises distractions and establishes a connection with the bench.

Azmi, Amylia Fuziana, Nik Salida Suhaila Nik Saleh and Zaharuddin Zakaria, 'Jurisdictional Conflicts in Facing COVID-19 Pandemic: An Analysis of Hibah Cases in Negeri Sembilan Syariah Courts' (2020) 3(1) INSLA E-Proceedings 622-628
Jurisdiction: Malaysia
 
Abstract: This study investigates the impacts of the Covid-19 pandemic on the number of hibah cases brought before the Syariah Courts in the state of Negeri Sembilan. In 2020, statistic reveals that a total number of 30 hibah cases have been registered in the Negeri Sembilan Syariah Courts. Interestingly, the total number of cases registered this year has decreased as compared to 51 cases for the previous year. This study discovers that the Covid-19 pandemic has an effect on the number of registered and resolved cases pertaining to hibahin Negeri Sembilan Syariah Courts. This study recommends that electronic method such as e-proceeding to be fully implemented so as to enable the public to access the court easily. It is hoped that findings of this study will shed light on the issue of jurisdictions concerninghibahand beneficial in providing clear and precise information on the jurisdiction of the Syariah Courts in deciding hibah matters.

Bailey, Diggory, 'Judicial Anticipation of Legislation' (2020) Statute Law Review, Article hmaa014 (advance online article, published 5 August 2020)
Jurisdiction: UK
Abstract: This note considers Re: A Company (Injunction to Restrain Presentation of Petition) [2020] EWHC 1406 (Ch) and Travelodge Ltd v. Prime Aesthetics Ltd [2020] EWHC 1217 (Ch) in the context of earlier case law and looks at the circumstances in which the courts have shown a willingness to have regard to the likelihood of future legislation.
Note: the litigation concerns a press release by the Secretary of State for Business, Energy and Industrial Strategy on 23 April 2020 which announced certain proposals designed to mitigate the effects of the Covid-19 pandemic on businesses and the economy. The legislation in question is the Corporate Insolvency and Governance Bill ('the Bill') was introduced into the House of Commons on 20 May 2020.

Baksi, Catherine, 'Access Denied' (2020) 163(6) Solicitors Journal 28-31
Jurisdiction: UK
Abstract: Reports on the increasing number of litigants in person (LiPs) in family and civil proceedings, and the disadvantages for those representing themselves in criminal proceedings. Notes additional problems created by remote hearings during the COVID-19 crisis.

Baldwin, Julie Marie, John M Eassey and Erika J Brooke, 'Court Operations during the COVID-19 Pandemic' (2020) 45(4) American Journal of Criminal Justice 743-758
Jurisdiction: USA
Abstract: This paper reviews the distinct nature of the COVID-19 pandemic and examines the resultant court responses and recommendations disseminated by various entities that support courts. Specifically, we contextualize the current environment the present pandemic has created by considering how it compares to the most-recent previous pandemics. We then review guidelines disseminated to the courts and the modifications and innovations implemented by the courts in response to the COVID-19 pandemic. Additional challenges related to these recommendations and modifications are identified and discussed.

Bandes, Susan A and Neal Feigenson, 'Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom' (2020) 68(5) Buffalo Law Review (forthcoming)
Abstract: Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with 'a mystique of authenticity and legitimacy.' The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential - they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of 'a day in court' as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts - the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public - we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

Beck, Andrew, 'Litigation: COVID and the Courts' [2020] (June) New Zealand Law Journal 177-180, 200
Abstract: The COVID-19 virus has caused substantial disruption to the normal operation of the world's business. The pre-emptive action taken by the New Zealand Government following the issue of a pandemic notice under the Epidemic Preparedness Act 2006 effectively curtailed all but essential business for a period of 5 weeks.

Bielik, Larysa et al, 'Features of Criminal Proceedings (Pre-Trial and Trial Investigation) in the Time of Pandemic Covid-19' (2020) 9(2) Ius Humani Law Journal 203-224
Jurisdiction: Ukraine
Abstract: The work is devoted to the main problems and features that have emerged in the field of criminal justice (pre-trial investigation and trial) in a pandemic. The relevance of this article is that criminal justice, like other areas of human activity, has been affected after the spread of Covid-19 and its recognition as a pandemic. The introduction of quarantine was accompanied by some problematic issues, including uncertainty in the work of the judiciary and law enforcement agencies, lack of a unified approach to court schedules, and the conduct of certain investigative actions. Thus, it is necessary to analyze the peculiarities of criminal proceedings in a pandemic. An explorative and collative methodology (that considers the comparative law) was used. The proposals have been made to address the problems that arise during the pre-trial investigation and criminal proceedings in a pandemic, in particular: the need to allow videoconferencing in criminal proceedings out of court; a list of programs for video communication have been defined; to provide adequate funding for technical re-equipment; to suspend the terms of criminal proceedings, and; to prevent in the future the situation of cancellation of previously adopted decisions on the strengthening of criminal liability for intentional infection.

Bicknell, Rachael, ''ODR: The Next Leap Forward?' (2020) 65(5) Journal of the Law Society of Scotland 26
Abstract: Discusses the benefits of online alternative dispute resolution (ODR) as part of measures globally to support individuals and businesses affected by the COVID-19 pandemic, and how ODR gives lawyers in Scotland an opportunity to better serve their clients where litigation through the Scottish courts is disproportionately expensive, slow and uncertain.

Brazile, Kevin C and Sherri R Carter, 'Accessing Justice in a Pandemic' (2020) 43(4) Los Angeles Lawyer 30-34
Jurisdiction: USA
Extract (page 32): Reinventing the largest court in the nation during a pandemic crisis required an extraordinary effort. Full-time working groups in every litigation area, and across the court's administrative areas, worked tirelessly to create solutions, guided by a common set of principles: 1) preserve essential functions, 2) find ways to support those functions in a manner that supports social distancing of at least six feet, 3) appropriately delay non essential functions that cannot be safely supported, 4) craft solutions that are supported by key stakeholders and authorized by law, and 5) implement changes rapidly albeit in a way that can be sustained throughout the crisis. Court leadership had to figure out what it means to stay committed to access to justice while also being committed to flattening the curve.

Byrom, Natalie, Sarah Beardon and Abby Kendrick, Rapid Review: The Impact of COVID-19 on the Civil Justice System: Report and Recommendations (Report, Civil Justice Council and Legal Education Foundation, June 2020) 1-93
Jurisdiction: UK
This review was undertaken by the Civil Justice Council between 1-15 May 2020. The aim of the review was:
  • To understand the impact of the arrangements necessitated by COVID-19 on court users.
  • To make practical recommendations to address any issues over the short to medium term.
  • To inform thinking about a longer-term review.
The Report's findings include:
  • Understanding the context for remote hearings under COVID-19
  • Remote hearings under COVID-19--The experience of lawyers
  • Remote hearings during COVID-19--Satisfaction with hearings
  • Understanding remote hearings under COVID-19--The experience of lay users
  • Remote hearings under COVID-19--The impact on open justice
The Report also makes recommendations for recovery and managing the backlog of cases.
For an excellent summary and analysis of the Report's key findings and recommendations, see Paul McGrath , 'Civil Justice Council Report on the Impact of COVID-19 on Civil Courts', ICLR Blog (Blog Post, 8 June 2020)

Candler, Blake, 'Court Adaptations during COVID-19 in the World's Two Largest Democracies' (SSRN Scholarly Paper ID 3609521, 24 May 2020)
Jurisdictions: United State and India
Abstract: Physical distancing measures to mitigate COVID-19 have significantly disrupted the judiciaries of both the United State and India. Courts are strained by an increased case backlog during and immediately after pandemics, as they receive more incoming cases and are less able to process them. Public safety interventions and economic decline cause the caseload to increase. The rate at which courts process cases, known as their disposal rate, decreases as in-person courtroom procedures are interrupted due to physical distancing requirements. Since the start of COVID-19, disposal rates have remained relatively high in the United States while they have plummeted in India. This article explores the main reasons for this difference, particularly the role of virtual courts. It also analyzes the benefits of virtual courts as well as their challenges, including data security and privacy, connectivity and remote access to files, and accountability to the public.

Caparelli, Christopher, 'COVID-19's Impact on the U.S. Judiciary and Litigation (3 April 2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Jurisdiction: Canada
Introduction: Due to the COVID-19 outbreak and escalating restrictions on Americans to stay at home as much as possible, U.S. courts at the state and federal levels are implementing emergency procedures in recognition of social distancing.
Because the U.S. judiciary is decentralized, no single contingency plan applies and each court is responsible for its own practices and procedures. As a result, the adjustments are varied and include restrictions on courthouse access, hearing and trial adjournments, deadline extensions, and allowance of remote appearances. It is important for litigants and their counsel to stay attuned to developments that are changing frequently by checking court websites, dockets and contacting the court as necessary.

'Case Updates: COVID-19 Case Updates' (2020) 32(4) Judicial Officers Bulletin 35-36
Jurisdiction: Australia
Abstract: Supreme Court : 'Bail Act' 2013, sections 16A, 16B, 17, 18, 19 - release application - evidence of effect of COVID-19 pandemic on criminal justice and prison systems - pandemic relevant to bail considerations - 'Rakielbakhour v DPP' [2020] NSWSC 323. Procedure -Trial procedure COVID-19 pandemic adjournment application granted trial in virtual courtroom impractical given technological difficulties accused's right to a fair trial compromised - 'R v Macdonald; E & M Obeid (No 11)' [2020] NSWSC 382. Federal Court - Civil procedure - COVID-19 pandemic civil trial adjournment application refused virtual trial would have some adverse impact but not unjust to proceed to extent possible under public health regulations - 'Capic v Ford Motor Company of Australia Ltd' [2020] FCA 486

Chiodo, Suzanne, 'Ontario Civil Justice Reform in the Wake of COVID-19: Inspired or Institutionalized?' (2021) 57(3) Osgoode Hall Law Journal 801-833
Abstract: On 17 March 2020, Ontario's courthouses shut their doors as the civil justice system locked down with the rest of the province. Regular court operations were suspended due to the state of emergency caused by the COVID-19 pandemic. This was followed by a flurry of activity as courts drew up plans to resume operations as soon as possible. The 'new normal' became virtual hearings, either by video conference, in writing, or by telephone. As Attorney General Douglas Downey said, 'We've modernized the legal system by about 25 years in 25 days.' Has the revolution arrived? Will the changes made in response to the pandemic become permanent? Will they be sufficient to address the problems of cost and delay that plague the civil justice system? This article will posit that many of these changes are likely to become permanent. However, the extent and effectiveness of change will depend on the ability of 'policy entrepreneurs' to use this moment of crisis to overcome institutional inertia in the Ministry of the Attorney General (MAG) and professional resistance in the Bar. This is not the first time that 'dramatic innovation[s]' have been made in response to a crisis in the civil justice system, as evidenced by the history of reform in that area. Lasting change will not come easily. Furthermore, while these changes are welcome, they are insufficient to address the crippling backlog facing the courts. A functioning civil justice system is essential to a functioning democracy, and Ontario's civil justice system is fundamentally broken. The 'paradigm shift' needs to go further. We need to entirely change our conception of how courts work, the nature of procedural justice, and our understanding of access to justice and how to facilitate it. The answer I propose, as Richard Susskind and others have, is a system of online courts, where human judges hear evidence and arguments and render decisions by way of an online platform, all within a public dispute resolution (court or tribunal) system. British Columbia's Civil Resolution Tribunal (BC CRT) is an excellent example. I argue that, as in BC, online courts could be initiated incrementally, alongside the current system, and thereby bypass and address many of the issues facing the current court system. I conclude with some thoughts for the future. Much has been written on the subject of online courts, and the COVID-19 crisis in Ontario has precipitated numerous blogs and online articles. However, no-one has yet conducted a deep analysis of the changes in Ontario and what they mean for our court system. More importantly, my article fills a gap in the literature on online courts in general, none of which has considered the history of civil justice reform and the nature of institutional change.

'CIArb: Mediation as a Multidisciplinary Practice' (2020) 170(7902) New Law Journal 22
Jurisdiction: UK
Abstract: Examines the increasing demand for mediation as a means of addressing court backlogs in the wake of the coronavirus pandemic.

Davies, Andrew, Victoria M Smiegocki and Hannah E Hall, 'The Court Is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending' (SMU Dedman School of Law Legal Studies Research Paper No 488, 2020)
Jurisdiction: USA
Abstract: What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States? To look forward, we look backward. We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007-2009. Redistributive policies - those which use tax payer funds to support individuals who themselves pay little or no tax - are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest. We attribute this apparent stability to two general explanations. First, certain factors made Texas unique: expenditures on indigent defense were already relatively low prior to 2007 and legal changes in the state shored up the mandate to supply representation. And second, the characterization of indigent defense itself as redistributive seems faulty. Indigent defense policy is also, in an important sense, a set of mutually-beneficial transactions between lawyers and judges, occurring with comparatively little oversight. The resilience of indigent defense services during times of scarcity suggests it is not only a policy which allocates funds to help the poor, but also is a policy which allocates funds in support of another clientele - the lawyers.

Dernikovic, Fiona and Marion Wright, 'Practice and Procedure: Adjournments and e-Trials in the COVID-19 Context' (2020) (67) LSJ: Law Society of NSW Journal 68-70
Jurisdiction: Australia
Abstract: Two recent cases concerning adjournments illustrate the implications of the COVID-19 pandemic and the influence of the Federal Court's Special Measures in Response to COVID-19 note on practice and procedure. It seems there has been a rapid re-adjustment of the drivers underlying the 'just, quick and cheap' rationale for the resolution of disputes, with parties having to demonstrate a certain level of prejudice or unfairness (as opposed to mere inconvenience), before an adjournment will be granted.

Dodson, Scott, Lee Rosenthal and Christopher Dodson, 'The Zooming of Federal Civil Litigation' (2020) 104 (Fall) Judicature (forthcoming)
Abstract: Federal civil practice has adapted to the COVID-19 pandemic by using new technologies, including, prominently, remote technology. How will reliance on remote technology during this pandemic transform lawyers, courts, and the law going forward? What changes to civil litigation practice should be embraced, what changes should be discarded, and what changes should await further technological advances? We explore these questions. Surveying some key pandemic-fueled developments of remote technology in federal civil litigation, we conclude that the pandemic's push toward the zooming of legal practice is likely to leave enduring marks. We identify the most promising uses for remote technology, strike cautionary notes for more pervasive implementation, and offer some suggestions for moving forward.

Draper, Brandon, 'And Justice for None: How COVID-19 Is Crippling the Criminal Jury Right' (SSRN Scholarly Paper ID 3666261, Social Science Research Network, 3 August 2020)
Abstract: The jury trial is meant to be the beacon of the criminal justice system in the United States. Amid the COVID-19 pandemic, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to this important constitutional right. Additionally, courts employed video conference technology such as Zoom and WebEx platforms to conduct arraignments, general docket appearances, and some pretrial hearings. Overall, this technology has greatly assisted in the continued function of most aspects of the criminal justice system.Four months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system: (1) trials that are both in-person and compliant with social distancing policies; and (2) trials conducted exclusively via video conference. This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. And at worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Despite these legitimate concerns, courts should attempt to resume jury trials that are both in-person and compliant with social distancing policies. Courts may also allow remote trials for defendants who on advice of counsel wish to proceed on that basis. While an imperfect solution, it allows the accused to maintain their Sixth Amendment confrontation right or give a knowing and voluntary waiver, and provides the criminal justice system the best opportunity to mitigate the other issues created to attempt to ensure a fair jury trial.

Dresner, Stewart, 'Courts will not go Back to Where They Were Pre-Pandemic' (2020) 110(July) Privacy Laws and Business United Kingdom Newsletter 16-17

Jurisdiction: UK
Abstract: Anticipates a lasting shift to the use of online courts beyond the COVID-19 pandemic in light of the argument by Richard Susskind, President of the Society for Computers and Law, that a court is a service, rather than a place and that users should become familiar with this method of justice. Considers the types of case which are suited to the online court process. Outlines the advantages and limitations of online courts.

Edmondson, Alison, 'Opinion' (2020) 65(5) Journal of the Law Society of Scotland 5
Abstract: Reflects on the response of the Scottish Courts and Tribunals Service to remote hearings following the COVID-19-related lockdown compared to court services in other jurisdictions, due to the Scottish Government's view that civil courts are merely a private dispute resolution service. Argues that individuals must in principle have unimpeded access to the courts in compliance with ECHR art.6.

'Effects of the Covid-19 Crisis on Limitation Periods' [2020] Lawyer (Online Edition) 1
Abstract: The article offers information on the enactment of Indian 2nd COVID-19 Act on limitation periods. It mentions that there is a substantively significant provision in Section 2, the period from the entry into force of this federal law on March 22, 2020 until the end of April 30, 2020 is the time in which a lawsuit or an application may be filed with a court or a Declaration is not included. It also mentions that deadlines for appealing to the court will be suspended in the advent of COVID-19.

Embley, PL, 'Judicial Perspectives on ODR and Other Virtual Court Processes' (SSRN Scholarly Paper ID 3638459, 18 May 2020)
Jurisdiction: USA
Abstract: Just a few months ago, most US courts significantly lagged behind banking, education, retail, healthcare, and other industries in the use of technology. Until mid-March 2020, that is, when US courts suddenly, overwhelmingly embraced some uses of technology, almost overnight, because they had to. Virtual hearings and ODR are opening up new possibilities that are not only keeping courts functioning during the pandemic, but also showing promise in helping resolve seemingly intractable access to justice issues. When the dangers of the COVID-19 virus have passed, courts anticipate a surge of filings. ODR and virtual hearings can 'scale' to meet surges in demand in ways that traditional processes cannot. Out of necessity in response to an unprecedented pandemic, courts are boldly embracing changes that are bringing more court processes into line with available technologies and public expectations.

Embley, PL, 'Managing Evidence for Virtual Hearings' (SSRN Scholarly Paper ID 3638363, 25 June 2020)
Jurisdiction: USA
Abstract: As a result of stay-at-home orders tied to the COVID-19 pandemic, courts in most states are conducting virtual hearings: using technology to facilitate a hearing without the judge and the parties being physically gathered in one location. Evidence is a key aspect of those virtual hearings. Much can be gleaned from the ways other types of organizations do business virtually. However, courts have unique needs that require thoughtful attention as they impact how evidence is submitted, stored, and shared to support a virtual hearing.

Engstrom, David Freeman, 'Post-COVID Courts' (2020) UCLA Law Review Discourse (forthcoming)
Jurisdiction: USA
Abstract: As with so much else in American life, COVID-19 delivered a gut punch to our justice system. And the worst is yet to come, as federal and state courts alike are soon to fill with cases reflecting the failing finances and fraying relationships of our sheltered-in-place lives. But in truth, our courts were already at a crossroads: chronically underfunded, increasingly politicized, behind the curve technologically, and shockingly out of touch with the justice needs of ordinary Americans. This Essay argues that it is time--with states, for better or worse, reopening--to begin thinking longer term. For the coronavirus pandemic is quickening a pair of tectonic shifts, both well underway when the first diagnoses were made, with the power to reshape the legal system for good and for ill by fundamentally altering the role lawyers play within it. The first is the erosion of the professional monopoly that lawyers have long enjoyed over the delivery of legal services and the steady empowerment of new legally trained professionals to help satisfy justice needs. The second is the adoption of new technologies, many using artificial intelligence, to supplement or even supplant lawyers' work. Looking back, the coronavirus's greatest legacy for the legal system may well be its hastening of the arrival of an age of supersession--the decentering and displacement of lawyers by nonlawyers of both the human and nonhuman sort. The question judges, lawyers, rulemakers, and legislators should be asking is not merely how to safely reopen the courts. We should also ask how the post-pandemic justice system will look different--and how it might even emerge from the current crisis better than before.

Finn, Sean E, 'Class Conflict in a Time of Plague: COVID-19 and the Class Actions to Which it is Giving Rise' (11 June 2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Jurisdiction: North America, with focus on Quebec
Introduction: At different times throughout history, our planet has been caught up in events that impinge upon almost everyone. Transformative technology, catastrophic wars, and stock market crashes are amongst them. So are pandemics. At the time of writing, approximately 6.66 million people worldwide are infected with the novel Coronavirus ("COVID-19"),and of these over 393,000, many of them elderly, have succumbed to this easily communicable infection.2 The human toll of the current health crisis is enormous. Enormous too are the psychological and economic consequences of the lockdowns that have paralysed economies in Asia, Europe, North America, and other parts of the globe. Businesses and entire industries have been shuttered in an effort to prevent the exponential spread of COVID-19 and the corresponding exhaustion of health care resources. As countries relax restrictions and shops reopen, employees return to their jobs, and some semblance of normalcy descends on a still traumatized world, the wheels of the civil justice system, temporarily idled, will begin to accelerate once more. Perhaps not surprisingly, allegations of negligence, neglect, breach of contract, and collusion, among others, have already been asserted in the context of numerous class actions stemming from COVID-19. While it would be impossible to look at the hundreds of new cases that have been commenced in the United States and Canada, closer attention will instead be paid to those that have been filed in Quebec, a jurisdiction that is fertile ground for such proceedings and a microcosm of the continent as a whole.

Fowowe, Adetomiwa, 'The Reality of Nigerian Legal System After COVID-19 Pandemic' (SSRN Scholarly Paper ID 3709757, 20 August 2020)
Abstract: There is no gainsaying the fact that the coronavirus (COVID-19) caught the world and every of its sector unawares are we are still napping as to what the solution to it is, more so that the virology is yet known. Within a very short period of its hit, it became a pandemic and has crippled the socio-political and the economic life or the world, the judiciary not spared. In relation to the vast importance of the judiciary, it necessitated its desperation to find a new means of operation; a virtual court system. This paper scrutinizes the importance of a virtual court system in Nigeria vis-a-vis the COVID-19 pandemic. Amongst other recommendations, this paper subscribes to an adequate funding in order to ensure an efficient operation of a virtual court system in Nigeria.

Golder, Papiya, 'Future of Virtual Courts in India Post Pandemic: An Analysis' (2020) 7(2) International Journal of Research and Analytical Reviews 982-987
Abstract: The COVID-19 pandemic has surely caused an economic depression and various other catastrophes (like that to the health sector and industrial sector). A Similar impact has been made to the legal sector of the country. Due to the nation-wide lockdown, The Supreme Court of India, almost every High Court has been temporarily closed. But can this crisis be used as an opportunity?

Grayson-Morison, Reegan and Stacey Steele, 'Judicial Responses to COVID-19: Japanese and Victorian Courts' Use of Technology' (Asian Legal Conversations: COVID-19, Asian Law Centre, Melbourne Law School, 23 June 2020)

Grolman, Leah, 'Remote Hearings: The New Normal?' [2020] (June) Computers and Law 50-51
Jurisdiction: UK
Abstract: Presents the experience of the author, an associate solicitor, of attending two remote hearings at the Technology and Construction Court and the Chancery Division during the COVID-19 lockdown, and her thoughts on whether such hearings should become the default option following the COVID-19 crisis.

Ha-Redeye, Omar et al, 'Being Innovative in Exploring Litigation Alternatives' (Ontario Bar Association, Innovation in Trusts & Estates Law, 15 June 2020)
Abstract: The COVID-19 pandemic has provided numerous challenges to legal practitioners, and especially in the area of virtual commissioning and notarization. This paper looks at some of the legislative developments during the pandemic, as well as some of the technical requirements that might make online commissioning and notarization possible, while utilizing an anti-oppression framework. Finally, the paper reviews some of the advances in artificial intelligence that might be of interest to the trust and estates bar.

Hack, Andrew and Jeff Brown, 'Legal Update: COVID-19: Will My Hearing Go Ahead?' (2020) 32(2) Australian Restructuring Insolvency & Turnaround Association Journal 33-36
Abstract: How the courts have been responding to the practical issues of lock-down.

Haigh, Richard and Bruce Preston, 'The Court System in a Time of Crisis: COVID-19 and Issues in Court Administration' (2021) 57(3) Osgoode Hall Law Journal 869-904
Abstract: Canadian courts, in many ways, are neither efficient nor effective. This has been clear for many years. This article looks broadly at how little attention has been paid to court administration in the past, especially during times of crisis, and examines the impact the current pandemic may have on the future of Canadian court administration. In this vein, we examine emergency plans in general before turning to pandemic-specific plans and how, especially in Canada, these have been found wanting during this current crisis. Like most organizations, courts have developed plans - business contingency (BCPs) in Canada and continuity of operation (COOPs) in the United States--laying out policies and processes to follow in an emergency. Yet none of the various disaster plans created by courts in both Canada and the United States highlight the role and importance technology would play. Despite the increasing use of remote access for hearings--there has been a great deal of success in scheduling appeal hearings remotely--most courts have been unable to operate at pre-pandemic levels. In fact, most courts have postponed the majority of their hearings and have had to push dockets forward. Postponing a large portion of the courts' hearings will undoubtedly add to a backlog of cases and increase the administrative burden on operations once physical distancing is removed. But the change in attitude that has taken place over the past few months is arguably greater than the sum of all changes made over the last forty years since Carl Baar's reference to courts being 'horse-and-buggy' organizations. The pandemic has provided a perfect occasion--no doubt forced but relatively low-risk--to try new things. Our position is that steps need to be taken to ensure that an increased reliance on 'privileged access to technology' during COVID-19 does not lead to an 'exacerbation of denial of access to justice.'

Hamlyn, Michelle, 'A Health Check on Open Justice in the Age of COVID-19: The Case for the Ongoing Relevance of Court Reporters' (2020) 42(5) Bulletin (Law Society of South Australia) 6-8
Jurisdiction: Australia
Extract: The importance of the media's role is heightened by the disruption to the courts' usual processes wrought by COVID-19 public health directives. A review of the cause lists reveals hearings being conducted, variously, in physical courtrooms, in virtual courtrooms hosted on Webex or Teams, or by telephone. Pleasingly, the courts appear mindful of the requirements of open justice in this changing landscape. In most cases it remains possible for non-parties to obtain dial in details and observe proceedings, albeit at the court's discretion, and with varying levels of 'invitation' versus requiring increased initiative by the nonparty. Some limited matters of substantial public interest are reportedly being livestreamed, and there are undoubtedly opportunities as well as risks associated with that. However, there remains at present a greater risk of persons who intended to observe a hearing being unable to do so due to lack of preparedness or technical difficulties.

Harvey, David, 'Courts and COVID-19: Delivering the Rule of Law in a Time of Crisis' (2020) 9(1) Journal of Civil Litigation and Practice 59-63
Jurisdiction: New Zealand
Abstract: This section considers the effects of the COVID-19 pandemic upon the operation of the courts and the delivery of justice services in New Zealand. It argues that COVID-19 has demonstrated the fragility and fallibility of the physical presence

Heinsch, Milena et al, 'Death Sentencing by Zoom: An Actor-Network Theory Analysis' (SSRN Scholarly Paper ID 3646607, 9 July 2020)
Abstract: As a result of the COVID-19 pandemic, courts around the world have relied on a range of technologies to cope with social distancing requirements. Jury trials have often been delayed, although some jurisdictions have moved to remote jury approaches and video conferencing has been used extensively for bail applications. Video conferencing has also been used to a more limited extent in the area of sentencing. However, many were recently appalled by the news that two people had been sentenced to death via Zoom. This article uses Actor Network Theory to explore the role of technology in reshaping the experience of those involved in the sentencing of Punithan Genasan in Singapore.

Hoole, Gregory N and George M Haley, 'How Mediators Leverage Technology to Overcome COVID-19 Concerns and Keep Cases Settling' (2020) 33(3) Utah Bar Journal 22-23

'House of Commons Justice Committee Issues Report on Effect of Covid-19 on the Courts' (2020) (August) Computers and Law 46-47
Jurisdiction: UK
Abstract: Discusses the House of Commons Justice Committee's report on the effect of COVID-19 on the courts and tribunals in England and Wales. Highlights issues surrounding the use of remote hearings and the need to ensure that court users, particularly those who may be considered to be vulnerable, are sufficiently able to follow and participate in virtual processes.
Note: this report is Justice Committee, Coronavirus (COVID-19): The Impact on Courts (House of Commons Paper No 519, Session 2019-21 (2020)

Hrdinova, Jana et al, 'Documenting the Challenges (and Documents) As Ohio Courts Respond to COVID-19' (Ohio State Public Law Working Paper No 541, 2020)
Abstract: As the coronavirus led to the vast majority of Americans living under stay-at-home orders, government institutions confronted a public health imperative to slow the spread of a communicable disease while still maintaining vital services for their constituents. Judicial branches of governments faced particular challenges given the traditional face-to-face and often time-sensitive nature of their work. Further, while governors can generally exercise centralized control over many parts of the executive branch of government, the judicial function in many states does not operate under a single chief administrator. Ohio represents one such non-unified court system, and this research project sought to review and summarize the formal responses of Ohio courts in the weeks during which the state began shutting down non-essential services in response to the COVID pandemic. This review reveals considerable formal action in service of minimizing physical appearances at court, but also highlights that relatively few court orders included express provisions aimed at decreasing the number of people entering prisons or authorizing proactive steps to release people from detention.

Jacobi, Tonja et al, 'Oral Argument in the Time of COVID: The Chief Plays Calvinball' (SSRN Scholarly Paper ID 3678316, 20 August 2020)
Jurisdiction: USA
Abstract: In this Article, we empirically assess the Supreme Court's experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in-person by the current Court and examine whether the justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female justices disproportionately more than the male justices and gave the male justices more substantive opportunity to have their questions answered. This analysis transcends the significance of individual cases. The fact that the Court experimented with telephonic oral argument, the way it did so, and how the practice could be improved are all issues of profound national importance. The new format had the potential to influence the outcome of cases that have broad national significance, to shift norms of equality and transparency at the Court, and more generally to affect judicial legitimacy. If the Court favors certain parties or certain ideological camps by its choice of forum in a time of crisis, then that will undermine not only the Court's claim to legitimacy but it also raises doubts whether any of our national institutions have the capacity to adapt to crises more generally.

Jones, Mark, 'Being a Judge in Juvenile Court During COVID-19' (2020) 23(4) Judicial Division Record 1-5
Jurisdiction: USA
Abstract: When I was asked to write this brief article about what it's like being a judge in a juvenile court during the pandemic, my first thought was: "That's easy: frustrating. No more denial hearings in delinquency cases or adjudicative hearings in CHINS or TPRs; in other words, no more hearings - for a while - of those cases in which we're all used to face-to-face examination and cross-examination. Can the clients talk confidentially with their counsel during the hearing when they are in two different geographical areas, and one is on a phone and the other a laptop, in the middle of a video hearing?

'Justice System Responds to COVID-19 Crisis' (2020) 42(3) Bulletin (Law Society of South Australia) 26
Abstract: The COVID-19 pandemic has created unprecedented challenges for all industries, and the legal industry is no exception.

Keilitz, Ingo et al, 'Racial Inequality and Systemic Injustice, the Coronavirus Pandemic, and the Courts' (SSRN Scholarly Paper ID 3695661, 10 August 2020)
Jurisdiction: USA
Abstract: The twin crises of systemic injustice and the vulnerabilities of the COVID-19 pandemic in 2020 have caused unprecedented social and economic upheaval - including economic contraction and sometimes violent street protests. Combined and entwined in a shameful way, systemic injustices and the relentless pandemic constitute existential threats to society disproportionately affecting marginalized and disadvantaged people. Confronting these threats is not just about the reform and revamping of one or two unjust institutions or units of government - the police and the health care system. It is instead an overdue reckoning on white supremacy, pervasive racial and ethnic injustices, and a deadly lack of preparedness for crises that were long anticipated. It is a challenge of transformative change that calls for a holistic response, a whole-of-society approach (WOSA) that must include the courts and the entire justice system, including the police, prosecution, defense, pretrial services, jail, prison, probation, and parole.This article is a call to action for the judicial branch of governments, including judges, court administrators, and their justice systems partners, not only to continue to provide critical justice services but also to advocate and to execute a whole-of-society approach (WOSA). This approach is essential to begin to root out racial biases and to combat the threats to our safety, security, and health during the Covid-19 pandemic. The authors present three reasons for court leaders and court administrators to get off the sidelines, to make their voices heard, and to become proactive participants in the fight against the existential threats of the admixture of systemic injustice and inequality, combined with our vulnerability to COVID-19: (1) the crises of disease, injustice, protests, and violence demand a WOSA that must include the courts and the justice system; (2) the courts' silence and reluctance to join fight cannot be defended; and (3) judges, court administrators, and their justice system partners must close the gap between the de jure and de facto law, i.e., the law on the books and the law in practice.

Larkin, Jr, Paul J, 'Suing China Over COVID-19' (2020) 100 Boston University Law Review Online 91-116
Abstract: On April 21, 2020, the state of Missouri filed a lawsuit in federal court against the People's Republic of China and various other parties. The lawsuit seeks damages from the defendants for their role in unleashing the COVID-19 pandemic, an action that, as the state has alleged, roiled the world for the last two months, put millions of people out of work, and killed thousands in the process. According to the complaint, Chinese authorities pursued '[a]n appalling campaign of deceit, concealment, misfeasance, and inaction' causing our current 'unnecessary and preventable' global pandemic. The threshold issue is whether Missouri can sue under the Foreign Sovereign Immunities Act of 1976 (FSIA). Missouri's lawsuit does not look promising under current law. Missouri claims that China has engaged in 'commercial activities' that allow this suit to go forward, but Missouri's alleged injuries are not 'based upon' those activities, as the FSIA requires. Missouri also alleged that it can sue China in tort for their response to the virus, but the FSIA does not allow foreign governments to be sued for their 'discretionary functions,' even when they abuse that discretion. Missouri alleges that the Chinese Communist Party is the ultimate authority in China, but does not allege that it lacks discretion over choosing its response to COVID-19. Missouri therefore has an uphill climb to avoid dismissal.

Legg, Michael, 'The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality' (2021) Federal Law Review (forthcoming)
Abstract: The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic courts need to function in a manner consistent with their institutional role and its essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts - open justice, procedural fairness and impartiality - and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for both an assessment of how the courts operated during the pandemic, but also provides guidance for making design decisions about a technology-enabled future court.

Legg, Michael, 'COVID-19 and Online Courts' (2020) 9(1) Journal of Civil Litigation and Practice 3-4
Abstract: The coronavirus, which gives rise to the respiratory illness coronavirus disease (COVID-19), emerged in China in December 2019 and then spread to many other countries. Courts around the world moved to online or remote hearings. This significant change gives rise to a multitude of questions, both about how courts performed during the pandemic but also about what lessons the experience may hold for the future. To this end a number of studies have been undertaken or are underway.

Legg, Michael and Anthony Song, 'Commercial Litigation and COVID-19: The Role and Limits of Technology' (2020) 48(2) Australian Business Law Review 159-168
Jurisdiction: Australia
Abstract: The COVID-19 pandemic has changed the way society functions. As social distancing measures were enforced across the world, courtrooms and registries, among other public services, were forced to shut their doors to the public to ensure the safety of staff, practitioners and the wider community. However, Australian courts have been able to use technology to deliver the essential service of justice to society remotely, including fully shifting to electronic filing systems and conducting entire hearings online through various audio-visual link platforms. This article examines the experiences of Australian commercial courts using readily available technologies to respond to the crisis. This in turn raises essential questions, such as how can open justice and procedural fairness be maintained when courtrooms close and trials move online? How do we ensure public trust and confidence in the court system and guarantee the essential human element of judicial institutions is not degraded? And how do we address delay and ensure technology is accessible to all? The answers to these questions will be essential to the future of commercial litigation.

Lindsey, Jaime, 'Open Justice, Participation and Materiality: Virtual Hearings and the Court of Protection' in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 257-264 (published 30 June 2020)
Jurisdiction: UK
Abstract: There has been much discussion about the use of technology in the justice system as a result of measures introduced by the UK government to respond to the Covid-19 pandemic. In this paper I articulate my own thoughts on the use of virtual hearings in light of the pandemic, specifically focusing on their use in contexts concerning potentially vulnerable participants, such as in the Court of Protection. In doing so, I highlight a number of challenges, opportunities and reflections on how we might respond to their use. I argue that in coming to analyse the use of virtual hearings, we should focus on the extent to which open justice is secured, the material differences between the virtual and physical court hearings and the participation of those affected by proceedings. :

Matyas, David, Peter Wills and Barry Dewitt, 'Imagining Resilient Courts: From COVID to the Future of Canada's Judicial System' (SSRN Scholarly Paper ID 3778869, 3 February 2021)
Abstract: The novel coronavirus disease (COVID) pandemic has challenged an array of democratic institutions in complex, unexpected and unprecedented ways. Little academic work, however, has considered the pandemic's impact on Canada's judicial institutions. This paper aims to fill that gap by exploring the Canadian judicial system's response to COVID and the prospects for administering justice amidst disasters, all through the lens of resilience. After taking a forensic look at how the judicial system has managed the challenges brought on by COVID, we argue that features of resilience like self-organization, preparedness and planning, learning, and reflexive decision-making can significantly contribute to the administration of justice during future shocks. Further, we argue that methodologies from policy analysis, such as benefit-cost analysis (BCA), are useful tools for improving the court's reflexive decision-making to stresses and shocks. We propose that the business of judging during shocks can become more integral to the 'business as usual' of judicial systems. Imagining such a resilient court can be a way to step from COVID to the future of Canada's judicial system.

McCann , Adam, 'Virtual Criminal Justice and Good Governance during Covid-19' (2020) 7(3) European Journal of Comparative Law and Governance 225-229
Introduction: Covid-19 demands that we embrace the 'positivistic approach of good governance'.1 This claim presupposes three things. First, that we see 'good governance' as part of the legal system - this means identifying the principles of good governance, their development as legal norms, and ensuring the necessary enforcement of those norms.2 Second, that good governance is nothing but empty rhetoric if we do not take that last point seriously - the relevant principles must be enforceable as rights.3 Third, that Covid-19 has thrown our legal systems into very risky and unprecedented territory. Individual rights are, perhaps justifiably so, at immense risk. This is clearly evident in the domain of criminal justice. Of particular interest here is the mass roll-out of 'virtual attendance' at criminal hearings via video links (VLs). Why is this of particular interest? Unlike other emergency measures (such as the suspension of jury trials or the introduction of radical public order/health offences), there is evidence to suggest the widespread use of VLs had political momentum pre-Covid 19.

McGrath, Sinead, 'Pandemic Protocol Must Maintain Public Trust' (2020) 117(31) Law Society's Gazette 18
Jurisdiction: UK
Abstract: Reports on the exemption to COVID-19 quarantine restrictions which means barristers, solicitors and court users can break quarantine to attend tribunals or hearings and raises concerns that this practice will put other court users at risk.

McHattan, Natasha, '"Obstacles, Not Roadblocks"' (2020) 32(2) Australian Restructuring Insolvency & Turnaround Association Journal 13-15
Abstract: The Australian court system, like other institutions, businesses, and organisations, has had to rapidly adapt to the challenges posed by the COVID-19 pandemic and the related social distancing measures which were imposed in Australia from March 2020.

McIntyre, Joe, Anna Olijnyk and Kieran Pender, 'Civil Courts and COVID-19: Challenges and Opportunities in Australia' 45(3) Alternative Law Journal 195-201
(Unpublished version available as University of Adelaide Law Research Paper No 2020-143, 2020 - on SSRN)
Abstract: This article provides an overview of the response of Australian courts to the COVID-19 crisis, and critically examines a number of structures and systemic issues that arise from the shift to the online deliver of justice. It places the current responses in the context of the emerging literature regarding online dispute resolution, and draws upon that literature to consider issues including open justice, symbolism and 'court architecture' in the digital space, technological limitations, access to justice and issues of systemic bias. It argues that by examining these issues, the present crisis will help map opportunities for future reform.

Mihailovich, Pooja, 'Post Pandemic: The New Normal for Tax Litigation' [2020] (June) Toronto Law Journal 1-2
Jurisdiction: Canada
Abstract: With the closure of the Tax Court of Canada due to the COVID-19 pandemic, the progress of most proceedings slowed, while others were brought to a halt. Although other Canadian courts had similarly restricted operations during this time, some resorted to the use of technology to address outstanding matters, including through video and teleconferencing. The Tax Court did not take such measures. The Tax Court was not viewed as providing essential services and did not have the technological capability to operate remotely. As a result, it was closed for business in all respects.
On June 25, 2020, Chief Justice Rossiter and Associate Chief Justice Lamarre provided an update on the reopening of the Court and outlined new procedures that the Court intends to implement to address the backlog created by the pandemic.

De Mino, Wolfgang P Hirczy, 'Devine Dissents on COVID-19 Shutdowns in Texas' (SSRN Scholarly Paper ID 3664781, 3 August 2020)
Abstract: On July 17, 2020 the Texas Supreme Court dismissed a challenge to Governor Greg Abbott's executive orders issued pursuant to the TEXAS DISASTER ACT in efforts to contain the spread of COVID-19.In re Hotze, No. 20-0430 (Tex. Jul. 17, 2020) (orig. proceeding). This legal action challenging the use of emergency powers during the pandemic--one of several--was brought by Steven Hotze, MD, a conservative political activist, joined by an assortment of affiliated co-petitioners. All were represented by the same Texas attorney, Jared Woodfill, himself a prominent Republican. The fact that the Texas Supreme Court dismissed the case was no surprise because it was initiated directly in the court of last resort, with no constitutional or statutory authorization for it. The statute that provides for mandamus relief expressly excludes the Governor as a target. What is more noteworthy, however, is the issuance of a dissenting opinion in the guise of a concurrence sympathetic to Hotze's challenge to Governor Greg Abbott's handling of the pandemic.

Mokhtar, Mohd Na'im, 'Reformation of Syariah Judiciary Institution During COVID-19 Pandemic' (2020) 3(1): International Seminar on Syariah and Law (INSLA) E-Proceedings - Special Issue: Syariah and Law in Facing COVID-19: The Way Forward 18-22
Abstract: In Malaysia, the pandemic of coronavirus COVID-19 has impacted almost all areas of our life. The administration of the Syariah courts is no exception. The effects of the pandemic have been felt until now. Following the movement control order (MCO) on March 18, all operations at Syariah courts nationwide have been halted. However, it did not stop the administration of JKSM and the Syariah courts which have continuously discussed, using the online platforms, to formulate reforms if the MCO was finally over. If justice delayed is justice denied, the COVID-19 would seem to be a disaster for our judicial system. But eight months into the crisis, there are signs that what is slowing courts overall is actually accelerating reforms in procedures. This is undoubtedly the hikmah or the positive side of COVID-19. When the pandemic finally ends, we hope that some of the changes that have been introduced will continue to be endured by the Syariah judicial system, and the efforts for reforms will continue. This speech explains the impact of covid-19 pandemic on Syariah judiciary, particularly on its operation and how has the institution, i.e. the Syariah courts dealt with it and the reforms that are taken in making sure the continuity of its service during the pandemic.

Outerbridge, David, Sylvie Rodrigue and David WR Wawro, 'Litigation Risk in COVID-19 Environment: Big Changes' (11 June 2020) 2 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Jurisdiction: Canada
Introduction: Litigation risks are materially different today, under COVID-19, than at the start of 2020 when the threat of a world-changing global pandemic was barely an idea. The economic and strategic considerations affecting organizations' litigation decisions are shifting. This article examines that shift and explores the consequences for litigants going forward as they seek to resolve disputes in the pandemic environment--both existing legal disputes and new litigation arising from COVID-19.

Paciocco, Palma, 'Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19' (2021) 57(3) Osgoode Hall Law Journal 835-867
Abstract: Court closures necessitated by COVID-19 have resulted in extensive trial delay, with implications for the section 11(b) Charter right to be tried within a reasonable time. Although COVID-19 appears to be a straightforward example of an 'exceptional circumstance' under the Jordan framework that governs section 11(b), careful analysis reveals that it falls within a category not contemplated by that framework--what this article calls 'discrete systemwide events.' Because COVID delay impacts cases across the system, the reasonable steps that can be taken to reduce it are themselves largely systemic in nature. Crucially, the exceptional circumstances analysis stipulated by Jordan focuses exclusively on the steps available in an individual case, while systemic delay is addressed indirectly through presumptive ceilings. Because the presumptive ceilings were not calibrated with COVID-19 in mind, they cannot account for COVID delay. Nor can systemic responses to COVID delay be assessed as part of the general exceptional circumstances analysis: Such an approach would require judges to adjudicate the reasonableness of myriad institutional policies, giving rise to problems ranging from a lack of data to separation of powers issues. This conundrum points towards one of two extremes: discount COVID delay without a full Jordan analysis, thereby partially relieving the Crown of its burden to justify presumptively unreasonable delay and leaving accused persons to bear the cost; or effectively prevent Crowns from justifying COVID delay as an exceptional circumstance, thereby risking thousands of stayed criminal charges flowing from the pandemic. This article suggests an alternative approach that navigates between these extremes: In some instances, delay caused by a discrete systemwide event like COVID-19 should be remedied by a sentencing reduction, authorized either by the Charter or by the sentencing process set out in the Criminal Code. This solution, while imperfect, achieves a more palatable result while adding minimal complexity to the section 11(b) analysis. If adopted, it could save accused persons from disproportionately bearing the costs of COVID delay, which would be the likely outcome were the Jordan framework applied straightforwardly.

Parodi, Giampaolo, Concetta Locurto, and Roberta Bardelle, 'Urgent Measures to Contrast the COVID-19 Epidemic in Relation to Civil and Criminal Justice' in Ewoud Hondius et al (eds), Coronavirus and the Law in Europe (Intersentia, September 2020)
Abstract: The following sections deal with the issues arising from the impact of the legislative measures adopted in Italy during the outbreak of the COVID-19 epidemic in the field of criminal and civil justice. They also contain, in summary, a reference to the constitutional framework on the basis of which the emergency legislation has been enacted. The analysis focuses on the measures adopted both in criminal and civil justice in relation to a first emergency phase, characterized by general postponements of hearings and suspension of procedural time limits, and to a second phase, where the Italian Legislator has foreseen that only specific measures may be adopted locally by the Presidents of the courts, aimed at avoiding gatherings in the courtrooms and close contacts between people.

Phelan, Sara, 'In the Interests of Justice' (2020) 25(3) Bar Review 83
Jurisdiction: Ireland
Abstract: Discusses how the Irish court system has adapted to the coronavirus restrictions to maintain access to justice via a mix of remote and physical hearings. Stresses that remote hearings are not suitable for all matters and that a balance between fairness and expediency must be reached.

Phillips, Burton and Ahmed Rajan, 'Tribunal Hearings in Unprecedented Times' (2020) 20(4) Without Prejudice 51-52
Jurisdiction: South Africa
Abstract: As a consequence of the COVID-19 pandemic and the resulting national lockdown, the use of technology by legal practitioners, courts, tribunals and other adjudicators has become more important than ever before. The lockdown has prevented adjudicators such as the Competition Tribunal, from conducting proceedings in a "business as usual" manner by restricting its ability to conduct physical hearings. The South African competition authorities responded swiftly to the crisis, and have adapted to new means of ensuring the continuity of competition litigation. This has been achieved through the use of virtual working platforms such as Microsoft Teams and Zoom. Could this crisis usher in a new way of conducting proceedings before the Tribunal, particularly in uncontested matters or matters having limited issues in dispute?

Pinto, Amanda, 'Modern Justice, Questionable Outfits' [2020] (September) Counsel 5
Jurisdiction: UK
Abstract: Reflects on the state of the justice system on the event of the Opening of the Legal Year. Discusses: judicial independence; the functioning of the justice system during the COVID-19 pandemic; and access to justice and free legal advice.

Pollard, Matt, Mathilde Laronche and Viviana Grande, 'The Courts and Coronavirus' (Part 1 and Part 2) in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (March-April 2020)
Introduction: Our contribution (in two parts) will consider the specific context of restrictions on access to or operation of courts. Around the world, in response to COVID-19, courts are adopting different modalities for the hearing of matters and limiting the range of matters than can be brought before them to only the most "urgent", while postponing all others.
The first post sets out the most relevant provisions on the role of courts in international human rights law, including in situations of emergency. The second look in more detail at specific issues, including the suspension of 'non-urgent' cases, changes in the modality of hearings, dealing with the consequences of postponement of cases, and risk-tolerance and the fundamental role of judges.

Pryde, Naomi, 'A Tale of Two Systems: COVID-19 and the Courts' (2020) 65(5) Journal of the Law Society of Scotland 20-21
Abstract: Compares the approach taken by Scottish Courts and Tribunals Service to that of HM Courts and Tribunals Service in facing the challenges associated with the COVID-19 shutdown, including on: their initial responses; the use of virtual courts; adapting rules of service; electronic filing of documents; and principles in relation to adjournment and remote hearings.

Quirk, Hannah, 'Covid-19 and Jury-Less Trials?' (2020) 7 Criminal Law Review 569-571
Abstract: When proffering some of his more outr proposals for dealing with Covid-19, US President Donald Trump is wont to ask, 'what have you got to lose?'. If Sir Richard Henriques' proposal to suspend jury trials in England and Wales as a means of dealing with the crisis is followed, the answer may be 'quite a lot'. The Lord Chief Justice has said that 'any move to judge-only trials would be very undesirable', but the immediate endorsement the idea received from influential supporters, and the significant logistical difficulties of arranging 'socially-distanced' trials, suggests the possibility of a 'second spike' in support of suspending jury trials.

Rattey, Justin D, 'Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana' (2020) Penn State Law Review (forthcoming)
Abstract: Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court's recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests--that virtual criminal trials are unconstitutional--is difficult to square with the answer offered by constitutional theory. Though the author of the Court's opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution's 'construction zone.' The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court's analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.

'Remote Hearings in Employment Tribunals' (2020) 1129 IDS Employment Law Brief 23-30
Jurisdiction: UK
Abstract: Reviews the impact of the coronavirus pandemic on employment tribunals. Considers Practice Directions and Presidential guidance relevant to remote employment tribunal hearings and offers guidance on case management in remote hearings, electronic bundles, video technology, and equal access for litigants in person and other vulnerable participants.

Riley-Smith QC, Toby, Adam Heppinstall and Freya Foster, 'Is Covid-19 Sowing the Seeds for Future Litigation?' (2020) 88(2) Medico-Legal Journal 90-97
Jurisdiction: UK
Abstract: We consider various types of litigation that may follow the Covid-19 pandemic, including: claims against National Health Service (NHS) Trusts by patients who have contracted the coronavirus (or by their bereaved families), claims by NHS staff against their employer for a failure to provide any or adequate personal protective equipment or testing, commercial claims arising from the procurement of medical supplies, the potential liabilities to those who suffer adverse reactions to any vaccine and the guidance issued by the regulators in relation to subsequent disciplinary action.

Sandoval, Clara, Michael Cruz and Camila Ruiz Segovia, 'Victims' Participation in Times of Covid-19 in Transitional Justice Accountability Mechanisms: What Is Needed for Virtual Hearings to Fulfil This Right? The Case of Colombia and the Special Jurisdiction for Peace' in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 73-81 (published 30 June 2020)
Extract from Introduction: This paper explores some of the challenges faced by victims to ensure that their right to participate in transitional justice accountability mechanisms remains a reality in times of Covid-19. In particular, it considers victims' participation through the use of information and Communication Technologies (ICTs), particularly virtual hearings. The paper looks at these issues in the context of the work of the Special Jurisdiction for Peace in Colombia, an accountability mechanism established by the Peace Agreement signed between the Colombian government and the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia or FARC) in 2016.

Santos Rutschman, Ana and Robert Gatter, 'Smoke Screens: An Initial Analysis of the Coronavirus Lawsuits in The United States against China and The World Health Organization' (Saint Louis University Legal Studies Research Paper No 2020-04, 2020)
Abstract: In this short essay we provide a preliminary analysis of the lawsuits filed by Missouri against China, and New York against the World Health Organization over the COVID-19 pandemic. We also situate the lawsuits against the expanding coronavirus-related misinformation 'epidemic.'

Schmitz, Amy J, 'Arbitration in the Age of Covid: Examining Arbitration's Move Online' (2021) Cardozo Journal of Conflict Resolution (forthcoming)
Jurisdiction: USA
Abstract: Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (ODR), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (OArb) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (FAA). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the Covid-19 pandemic sparked the acceleration of arbitration's move online. At the same time, jurisprudence around the FAA has sent various signals that both help and hinder the growth of OArb. Furthermore, the 1925 FAA was not built to address innovations like virtual hearings, creating need for policies that adapt for technological progress. Accordingly, this Article discusses how recent jurisprudence and institutional promulgations may impact OArb, and offers considerations for courts, policymakers and practitioners shepherding OArb development.

Schmitz, Amy J and Janet Martinez, 'ODR Providers Operating in the U.S.' in Mohamed S Abdel Wahab, Ethan Katsh and Daniel Rainey (eds), Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (Eleven International Publishing, forthcoming)
Abstract: Technology is revolutionizing the Alternative Dispute Resolution (ADR) field, especially in the wake of Covid-19. Despite the long-held assumptions that increasing understanding, building empathy, and crafting resolution are only possible in-person, effective ways have emerged for assisting the resolution of the exploding number of disputes that have burgeoned online. Technology has become the 'fourth party' through the growing field of online dispute resolution (ODR), which includes use of technology and computer-mediated-communication (CMC) in negotiation, mediation, arbitration and other dispute resolution processes. ODR is infiltrating every area of dispute resolution, from courts (small claims, civil, and family) to the block chain. Furthermore, the most prevalent process option is mediation, followed by negotiation and arbitration. This Chart aims to collect providers that self-identified as providing 'ODR' to the National Center for Technology and Dispute Resolution (NCTDR).Curiously, firms had self-identified as 'ODR Providers', but did not all offer ODR. The authors continue to gather and explore firms that identify themselves as 'ODR Providers' and thus the attached is a work-in-progress. Moreover, inclusion in the chart is not an endorsement or agreement with that designation. Again, this merely reports findings regarding those that identified themselves to the NCTDR and will hopefully engage ongoing research in the area.

Shammas, Michael, 'The Verdict Is In: Online Jury Trials Are Possible' (SSRN Scholarly Paper ID 3685422, 31 August 2020)
Jurisdiction: USA
Abstract: At the start of the COVID-19 pandemic, it was uncertain whether it would be possible to continue conducting civil jury trials. Now, however, the successful completion of both mock and real civil jury trials proves that online jury trials are possible, but that (due to confidentiality requirements) they will need to be at least partly conducted in person.

Shammas, Michael, 'Thoughts on Optimizing Time & Attention in Virtual Trials' (SSRN Scholarly Paper ID 3646490, 8 July 2020)
Abstract: I've previously examined the logistical difficulties affecting virtual trials and hearings. Two as-yet unexamined aspects involve technology's impact on:
(1) judicial time management and,
(2) juror and attorney attention.
These questions, however, could not be more important, especially in the case of crucial monologues like a judge's reading of jury instructions (the focus of this essay).
Given the brain's tendency to wander, what about their usual style should judges alter when conducting trials and hearings over platforms like Zoom? How can judges account for the differences between online and physical interaction?

Shanahan, Colleen F et al, 'COVID, Crisis and Courts' (GWU Legal Studies Research Paper No 2020-51, 31 July 2020)
Jurisdiction: USA
Abstract: Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression day in and day out and it will continue to do so with even more urgency in the future: the state civil courts.
Even before the current crisis, as other branches of government have failed to address inequality, state civil courts have become the government actor of last resort for the tens of millions of Americans each year who suffer the consequences of these failures. Now, these same courts -- for the first time in history -- have quickly and nimbly changed the way they provide justice. Courts' improvisation in the face of a global public health crisis present a permanent opportunity for social change. In contrast to burgeoning attention to state criminal courts, this role for state civil courts was hidden from those not directly involved and largely ignored by scholars. Now it is unavoidable. This essay lays out a framework for change that state civil courts should embrace as they reopen to the tidal wave of litigants.

Shang, Carrie Shu, Wenli Guo and Charles Ho Wang Mak, 'Two Paths Leading to the Same End? A Discussion of Development and Regulation of Online Mediation Under the COVID-19 in the People's Republic of China and the United States' (2020) World Arbitration and Mediation Review (forthcoming)
Abstract: The recent COVID-19 crisis has set the stage for a significant increase in the use of online dispute resolution. Under worldwide country lockdown and/or social distancing orders, behaviors of people have adjusted drastically. Further, the increased use of online mediation to resolve disputes has raised the legal community's interest across jurisdictions. The purpose of this paper is to examine two different development paths of online mediation post-COVID-19 taken in the People's Republic of China and the United States, the world's two largest economies. The first part of the paper provides a background on the development of online mediation in China by examining a few newest judicial and administrative directives mandating state-wide experiment of online dispute resolution mechanisms. Moving on the discussion of the development of online mediation in China, it then focuses on the professional and self-initiated efforts of the dispute resolution community in the United States leading to the further surge in supply and demand of online mediation services. Building on the comparative analysis, the paper unpacks different roles of both public and private stakeholders play towards promoting the wider acceptance of online mediation initiatives in the world, speaking against any pre-fixed preference in dispute resolution for state-led or community-based approaches.

Simon-Kerr, Julia Ann, 'Unmasking Demeanor' (SSRN Scholarly Paper ID 3610460, 22 May 2020)
Abstract: Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness's whole face in order to effectively 'read' demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.

Sinfield, Greg, 'Let Justice Be Done' (2020) 185(4749) Taxation 8-11
Jurisdiction: UK
Abstract: Explains how the First-tier Tribunal Tax Chamber moved to remote hearings in response to the coronavirus pandemic, and plans to use them in appropriate cases in future. Considers how the Chamber coped with its workload and why proceedings were stayed and some cases were determined on papers.

Smith, Stephen, 'The Right to a Public Trial in the Time of COVID-19' (2020) 77(1) Washington & Lee Law Review Online 1-15
Abstract: Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment's right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis, and turns on a case's specific circumstances. This essay proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment's good government purposes in this time of emergency.

Song, Anthony and Michael Legg, 'Technology: The Courts and the Pandemic: The Role and Limits of Technology' (2020) (66) LSJ: Law Society of NSW Journal 65-67
Abstract: COVID-19 was declared a pandemic by the World Health Organization on 12 March 2020. The Australian and state governments took various steps to try to slow the transmission of COVID-19, including closing businesses and outdoor areas, restricting group gatherings, encouraging people to work from home and follow 'social distancing' - reducing the number of close physical and social contacts a person has.

Sorabji, John and Steven Vaughan, '"This Is Not A Rule": COVID-19 in England & Wales and Criminal Justice Governance via Guidance' (2021) European Journal of Risk Regulation (advance article, published 9 February 2021)
Abstract: Soft law is an integral part of the efficient and effective functioning of public administration in England & Wales, with a long history of use. As such, its deployment per se as part of the regulatory response to COVID-19 in England & Wales is unremarkable. What is more striking, however, is the extent to which soft law was deployed, with over 400 pieces of 'guidance and regulations' created by the government in Whitehall, to say nothing of the other primary and secondary legislation passed to deal with the crisis. In this article, we do three things. First, we look at the place of soft law in administrative law in England & Wales. We then turn to the broad regulatory framework, including soft law, which governs the COVID-19 pandemic in our jurisdiction. This background then allows us, in the final part of this article, to take a deep dive into the criminal justice system. Here, we show how the senior judiciary predominately relied on soft law in the form of judicial guidance and protocols to manage the system. This was against the backdrop of targeted legislation that provided for an expansion of access to the criminal courts via video and audio links and also a limited number of Practice Directions that have the force of law. Our deep dive allows us to argue that the approach taken by the senior judiciary to the use of soft law during the COVID-19 pandemic has, in a number of ways, been more effective than that taken by the government. That being said there remains room for improvement, particularly as concerns the nature of the judicial guidance issued and clarity in terms of what guidance was in place and when.

Sourdin, Tania, Bin Li and Donna McNamara, 'Court Innovations and Access to Justice in Times of Crisis' (2020) Health Policy and Technology (forthcoming)
Abstract: COVID-19 has disrupted not only the health sector but also justice systems. Courts around the world have had to respond quickly to the challenges presented by the pandemic and the associated social distancing restrictions. his has created significant challenges for the justice system and such challenges are likely to be further compounded in the post-pandemic era as there is a 'tsunami' of COVID-19-related disputes predicted. This article argues that courts should embrace newer technologies that support court services while being mindful of possible tech-related issues that can impact on justice objectives. We argue that by placing further emphasis on alternative dispute resolution methods and ODR into the future, this might offset the likely tsunami of COVID-related litigation which would enable courts, hospitals, medical professionals and patients to settle disputes in a just, equitable and more efficient manner.

Sourdin, Tania and John Zeleznikow, 'Courts, Mediation and COVID-19' (2020) 48(2) Australian Business Law Review 138-158 (unpublished version of article available on SSRN)
Abstract: Fundamental to the practice of law is the need to adapt to the ever-changing circumstances of human society. The COVID19 pandemic is requiring lawyers, courts, judges and others involved in the justice system (such as Alternative Dispute Resolution ('ADR') practitioners) to reassess how they operate in an rapidly changing environment that requires them to use technology to operate remotely and to make use of technological tools that often are not constructed to support the needs of those working in the justice sector. Responses by courts and ADR practitioners vary considerably from jurisdiction to jurisdiction and many responses are ad hoc and informed by a crisis management approach. At the same time, innovation that has often been stalled by inertia across the sector is challenging many to contemplate how rapidly approaches can be introduced to ensure that the justice system can continue to deliver outcomes without increasing delay that can enable economic recovery in the face of a rapid projected increase in disputes. This article explores current response to COVID19 in the context of courts and mediators and also considers these responses in view of past technological developments. The authors note that responses are changing on an almost daily basis in some jurisdictions and therefore note that some responses may alter again as courts and others continue to innovate in this new environment.

Stewart, John M, 'Just How Interconnected We Are' (2020) 94(3) Florida Bar Journal 4-9
Abstract: In the article, the author discusses the interconnectedness of people around the world and the susceptibility of the economic and legal systems from uncontrolled interruptions like the COVID-19 pandemic. Topics include the need by the legal system to adopt technologies like telecommuting to ensure life, business, and work continuity and the request by the Florida Supreme Court to reform the rules of procedure and those governing The Florida Bar to prevent work interruption.

Storer, Carol, 'Does the Justice System Really Matter?' [2020] (September) Legal Action 3
Jurisdiction: UK
Abstract: Argues that the Government must act to preserve the effectiveness of the justice system. Discusses the importance of the Legal Support Action Plan, the impact of the digitisation of courts and advice services on the most disadvantaged, the new legal needs generated by the coronavirus pandemic, the investigation into sustainability of civil legal aid, and the need for adequate funding.

Strong, SI, 'Procedural Law in a Time of Pandemic: Australian Courts' Response to COVID-19' (Legal Studies Research Paper Series No 20/38, University of Sydney Law School, July 2020)
Abstract: This chapter considers how Australian courts have responded to the coronavirus pandemic as a matter of criminal and civil procedure. Although the diverse nature of the Australian judiciary makes it impossible to provide a detailed analysis of all actions taken nationwide, the chapter nevertheless provides a general overview of the procedural protocols and case law adopted in response to COVID-19 so as to preserve the lessons learned during this period for future reformers based in Australia and beyond.

Swoboda, John-Paul, 'Remote Hearings: The New-Normal? (Are They Fair? Are They Just?)' [2020] (3) Journal of Personal Injury Law 208-211
Jurisdiction: UK
Abstract: Reflects on the growth of remote personal injury hearings due to the coronavirus pandemic, and whether such proceedings are both fair and just. Reviews the distinction between the two concepts illustrated by SC (A Child) v University Hospital Southampton NHS Foundation Trust (QBD), the lack of guidance on when hearings should be remote, whether a permanent move towards such hearings is emerging, and whether this will lower the quality of justice.

Tallodi, Timea, 'Love of Video Mediation in the Time of Covid-19: An Initial Insight into Benefits and Challenges' in Ferstman, Carla and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 247-255 (published 30 June 2020)
Abstract: Mediation's claim to legitimacy is based largely on its promise to integrate responsiveness to personal needs and values into the process of dispute resolution, offering 'personalised justice' based on human needs. As face-to-face mediation sessions are not possible during the Covid-19 outbreak, mediation service providers are offering video mediation services. Before the onset of the pandemic, video mediation was used on a much smaller scale. Whilst this article highlights the benefits of video mediation it also identifies challenges that must be faced when seeking to incorporate video mediation as an integral part of service provision post-pandemic. It emphasises that if mediation is to continue to provide high quality personalised justice it is vital that practitioners, when considering the appropriate medium for each mediation, give thorough consideration to a wide range of factors. Such factors include parties' need to maintain or reduce distance (geographical and psychological), and the rise of a new form of vulnerability that hinders less IT literate persons' access to alternative dispute resolution mechanisms. The author includes references to her own personal experience of conducting video mediations in the United Kingdom (UK) and recommends the way forward for optimal integration of videoconferencing into mediation practice.

Tao, Frank, 'Remote Court Hearings in a COVID-19 World: What We Can Learn from the Case Law to Date' (2020) 22(9/10) Internet Law Bulletin 134-136
Jurisdiction: Australia
Abstract: The COVID-19 pandemic has caused courts to almost entirely stop conducting face-to-face hearings. With no clear end to the pandemic in sight, practitioners and their clients have been required to conduct video and telephone hearings. Some litigants have applied to vacate hearings on the basis that the proposed video or telephone substitute is unjust, unfair or unworkable. This article overviews the courts' approach to resolving such applications and identifies the types of difficulties which may cause a civil hearing to be vacated. In doing so, this article offers some practical guidance for current and future litigants in overcoming the challenges associated with remote hearings.

Thomson, David K, 'Appellate Advocacy in the Age of COVID-19' (2020) 23(4) Judicial Division Record 1-4
Jurisdiction: USA
Abstract: Still, interacting over video has its drawbacks and judges and attorneys alike are learning as we go about how to make court proceedings held over video as smooth, simple, and professional as possible. Q: Do judges foresee video arguments becoming a permanent option for court proceedings that will be available after the pandemic has subsided? The orderliness of the arguments seems to have mitigated, at least to a degree, the inherently choppy nature of remote proceedings and the trouble of the attorneys talking over the justices.

Thornburg, Elizabeth G, 'Observing Online Courts: Lessons from the Pandemic' (SSRN Scholarly Paper ID 3696594, 21 September 2020)
Jurisdiction: USA
Abstract: Before the COVID-19 pandemic, few adults would have asked themselves the question, 'what are courts?' If they did, the most likely answer would have talked about the courts in terms of buildings. Suddenly a pandemic was upon us, and that forced us to think again. Courts went online, and looking at what happened helps us to consider more clearly what courts really are. In fact, courts are providers of important services. Focusing on that mission of service provides a filter for considering both current adaptations and future plans. When in-person hearings can resume safely, there will be a tendency to try to go back to the way things were before. But should we? To answer that question, we need to know more about what has been happening in those online hearings.
In March, to keep vital legal processes moving while keeping participants and the public safe, the Texas Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create public access to those proceedings on YouTube. During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours. In so doing, it provided a unique gift: a window into the crucial proceedings of everyday trial courts, hearings that are normally ignored and that almost never result in reported opinions.
This article describes the findings of on an observational study of hearings in those courts. A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings 'work'? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts?
The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence). As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself improves.From a human standpoint, consider some snapshots: an adoption ceremony was witnessed by 75 people from around the world; an out-of-state witness was able to testify; a mother was able to participate in her hearing without having to give up a day's pay; an arresting officer was able to appear by taking a few moments off rather than spending hours traveling and waiting to testify; a lawyer avoided two hours of travel for a fifteen minute hearing; another lawyer was able to work productively while in a Zoom waiting room instead of. sitting on the courtroom benches for docket call; a judge serving multiple rural counties saved hours that would have been spent driving among courthouses.
After reporting on the observations, the article turns to lessons for the future. Even when courts are able to return to fully in-person hearings, should they? What processes should continue to be done online? What absolutely needs to hang onto in-person processes unless completely infeasible? More fundamentally, what has this taught us about what courts are really about? Courts and judges have done an admirable job adapting to the online environment, but can we also see opportunities for more fundamental innovation? When the pandemic is no longer forcing the issue, there will be a tendency to reach for the familiar, to return to doing everything in person, at the courthouse. It does not have to be that way. These lessons should not be lost, and the courts can reach beyond 'normal' -- they can reach for better.

Tomlinson, Joe et al, 'Judicial Review in the Administrative Court during the COVID-19 Pandemic' (SSRN Scholarly Paper ID 3580367, 15 April 2020)
Jurisdiction: UK
Abstract: In this paper we report the first set of preliminary empirical findings concerning how the judicial review process in the Administrative Court has operated under COVID-19 measures. Our findings suggest that, while there is support for the process continuing and remote hearings have certain strengths, there are also various technical difficulties arising and remote hearings are not seen as universally appropriate, even in a jurisdiction with a focus on 'law-heavy' disputes.

Turner, Jenia Iontcheva, 'Remote Criminal Justice' (SMU Dedman School of Law Legal Studies Research Paper No 487, 2020)
Jurisdiction: USA
Abstract: The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.
The survey responses paint a complicated picture. They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public. Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials. These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely. Respondents also expressed concern that the court's perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients. Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.
Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice. It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over. Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations. Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings. If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

Vasaly, Mary, 'Law in the Time of Coronavirus' (2020) 23(4) Judicial Division Record 1-4
Jurisdiction: USA
Abstract: The corona-virus pandemic has required all of us who are part of the judicial system to learn new approaches to legal procedures in record time. Knowing that 'justice delayed, is justice denied', we all have felt pressure to adopt new methods of delivering justice in a timely fashion, despite the absence of the ordinary legal processes that have been a hallmark of our justice system. We should remember that our clerks are facing the same constantly changing requirements, and as a result, they must quickly learn new file processing methods, and new remote hearing technologies and procedures, and then, when they are modified, the amended methods and procedures.

Walsh , John, 'The Dangers of Digital' [2020] (September) Legal Action 10-11
Jurisdiction: UK
Abstract: Reflects on the dangers which remote hearings and the use of artificial intelligence in judicial decision-making pose for access to justice during the coronavirus pandemic.

Whitear-Nel, Nicci, 'Remote Justice: South Africa Lags Behind Just When COVID-19 Requires it' (2020) 20(4) Without Prejudice 47-48
Abstract: The COVID-19 pandemic has had a catastrophic effect on so many aspects of our lives - including access to justice.

Wilson, Melanie D, 'The Pandemic Juror' (2020) 77(1) Washington and Lee Law Review Online 65-96
Jurisdiction: USA

Abstract: While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees 'the right to a speedy and public trial, by an impartial jury.' There is no justice without jurors. Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks - sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community.Concerns about the virus are already resulting in some jurors defying their legal obligation and refusing to appear for service. Recent surveys show that because of COVID-19, three out of four jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting the virus. When jurors are worried and distracted, they may rush to a verdict - any verdict - or fail to appreciate all of the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.

Zubair, Ayyan, 'Confrontation During COVID' (SSRN Scholarly Paper ID 3702551, 30 September 2020)
Jurisdiction: USA
Abstract: The opportunity to face one's accuser is a fundamental right guaranteed by the Sixth Amendment's Confrontation Clause. However, our legal system has utilized videoconferencing technology long before Zoom became a verb in the American lexicon. And in Maryland v. Craig, the United States Supreme Court established a two-step 'necessity and reliability' test for video testimony offered by child survivors of sexual abuse against their alleged abuser. As we move towards an increasingly virtual world during the COVID-19 pandemic, courts, prosecutors, defense attorneys, and legal scholars are conflicted as to whether government witnesses in criminal trials should be permitted to testify by videoconference in our new socially-distant reality and beyond.In this Note, I enter this debate by offering two proposals. In the short term, I contend that judges should not extend Craig to permit accusatory witnesses to testify over videoconference during the pandemic. A Rule 15 deposition, I contend, is a more constitutionally-sound alternative to in-person testimony than is video testimony because it provides the defendant the opportunity to confront the witness in-person (albeit socially-distant). In the long term, I argue that the Court should remove its reliability and public policy analyses in Craig, which have been rendered impermissible by its later decision in Crawford v. Washington. Instead, the Court should adopt what I call 'hierarchy of methods' approach, permitting video testimony only when securing in-court testimony or Rule 15 deposition of an essential witness is infeasible.

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