Friday, September 30, 2022

Away from the rigorous environment of the courtroom, there is always a risk of default…

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Virtual listening etiquette had to evolve quickly, and there have been transgressions along the way. One country that has reported many violations of the virtual hearing decorum is India.

In a case before the Kerala High Court in November 2021, the appearance of a shirtless man prompted the judge to remark: “This is a court, not a circus or a cinema”. In January this year, a participant was observed brushing his teeth and shaving. Where lawyers are the culprits, the assault on the dignity of the court intensifies. In August 2021, India’s Supreme Court was displeased after seeing a lawyer chewing gutkha, a flavored tobacco, during a virtual hearing.

Outside the rigorous and formal environment of the courtroom, there is always a risk that standards of decency will slip. The more casual the environment, the greater the risk of sloppy behavior, bad manners, and slang. Smart clothing is essential to protect yourself from these dangers, but also a decent place to attend the procedure. It seems clear that a car, stationery or not, is not generally viewed as such.

In Scotland, however, views differ. The sheriff said nothing when a witness walked up to us from the cab of his truck, cell phone on the dash, at virtual evidence at Ayr Sheriff Court. That meant cross-examining him with a steering wheel at the base of the screen and a tree-shaped air freshener dangling above. It was unconventional, but not an insurmountable problem.

There are some jurisdictions that are more reluctant to use cars as a place of jurisdiction. The High Court of Ireland issued a Practice Note in March stating: “Except in very exceptional circumstances, taking part in a distance hearing from a motor vehicle is unacceptable.” In 2021, the participant in the virtual hearing in Michigan reprimanded for driving his car during his appearance. Ironically, the call was related to his driver’s license suspension. The judge was unimpressed.

India is obviously a place where it is unwise for lawyers to combine cars and court appearances. In November 2020, the Deccan Herald reported that a lawyer was fined Rs 10,000 (just over £100) for sitting in a car during a virtual hearing before a debt collections court. The Chairman felt this was an appropriate sanction given that the Gujarat High Court recently fined a lawyer for smoking in a car during a virtual hearing.

In February 2021, The Times of India reported on a case of a lawyer conducting a virtual hearing at the Madras High Court while “casually sitting in a parked car”. The fact that the vehicle wasn’t moving appears to have mattered little, as the court found that the attorney “disregarded court procedure.”

Worse, in January 2022, another lawyer attended a virtual hearing at Delhi’s High Court while actually driving. The appeal was adjourned, with Judge Gupta chiding him for his inappropriate behavior and suggesting he “observe some decency”.

Madras High Court is clearly not a place for nonsense, as attorney Santhana Krishnan pointed out when he was sentenced to two weeks in prison in April. The previous year he had a virtual hearing and found himself in a situation that every attorney faces, waiting for the judge to call his case. Instead of checking his email or playing Sudoku, he unconventionally decided to spend the time doing what the court called “eroticism” with a young woman. Unfortunately, the lawyer left his webcam on and the resulting footage was shared widely on social media.

Much closer to home is an example of a judge breaking formalities himself. The Judicial Conduct Investigation Office found this year that Assistant District Judge Christopher McMurtrie “had conducted a hearing in his car (presumably that should read ‘off’), in part while he was driving and using his phone in hands-free mode.” He was told to “avoid conduct that might diminish respect for the judiciary.”

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