Do (Courtroom) Journeys Still Educate?

In the era of widespread remote hearings, traditional “courtroom tourism” has somewhat receded into the background. The ability to conduct hearings online must certainly be assessed positively; nevertheless, with the passage of time I have become ever more convinced that an in-person hearing has its own unique charm.

A stationary hearing offers entirely different interactions with the court, the client, and the opposing party. It also allows for pleasant conversations outside the courtroom—sometimes lighthearted exchanges, sometimes even sharp exchanges with the other side before the session begins, depending on the atmosphere of the dispute and the temperament of the participants. All this, of course, within the bounds of professional decorum—though it has happened more than once that I have been the target of insults, or even vulgarities, from the opposing party (not their counsel), the last one during site inspections.

I also believe that a traditional hearing is experienced differently. A remote hearing feels “instant,” happening on the spot—which does not mean, of course, that preparation time is shorter or that the matter itself is simpler.

What remote hearings undoubtedly lack are the “lessons” learned in courthouse corridors. One remark has stayed with me to this day, voiced by a party in another case while we were waiting for our hearings together. This person—mature in age and seasoned in litigation, though not a lawyer—remarked, half-jokingly, that judges should be stripped of their “immunities” in three respects:

• The “immunity” from reading case files.
• The “immunity” from justifying decisions.
• The “immunity” from applying the law.

On the other side of the scales, one might imagine a judge wishing that parties and their counsel could also shed their “immunities,” such as:

• The “immunity” from presenting intelligible arguments.
• The “immunity” from introducing evidence at the outset, in support of their claims
• The “immunity” from acting to resolve the dispute efficiently—ideally at the first hearing.
• Likewise, the “immunity” from applying the law—though from the other perspective, one must remember the obligation to invoke “procedural caution.”

These somewhat humorous “accusations” concerning the supposed “immunities” of courtroom participants likely stem from perceptions of how the judicial process is organized—from the heavy workload of the courts, through to the judicial framework itself, (which can be overly formal and intimidating), to the subjective feeling that a judgment was fair—or unfair—simply because it did not meet our expectations.

In my view, none of the above-mentioned “immunities” actually exist or are applied (save for the rare exception proving the rule). Nevertheless, it is difficult to overlook the fact that litigation is generally perceived negatively, as a dangerous terra incognita. Yet in truth, it should be regarded as a positive civilizational achievement: when a dispute arises between two individuals, it is resolved by a specialized, impartial institution, according to clear rules, efficiently, and with the active participation of the disputing parties and their advisers. No more—and no less.