In my view, the simplest answer to this issue [videoconference or in-person] is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.
Justice Frederick L. Myers, Ontario Superior Court of Justice in Arconti v. Smith, 2020 ONSC 2782
What will be the place of virtual hearings in a post-pandemic world? Can we go back to the way we were? Should we? What is missing from hearings when they are virtual? And can we address these shortcomings?
We have now had over a year of doing administrative justice solely online. This has been a grand experiment that has given us lots of information and experience that we can apply to the post-pandemic world of delivering administrative justice. The key question is what place will there be for virtual hearings and how extensive will their use be? There will be pressure from governments to continue using virtual proceedings extensively due to the significant cost savings in travel and hearing room rentals or maintenance. However, we must give more focus (and weight) to access to justice issues and the overall integrity of the administrative justice system when considering how extensively to use virtual proceedings when we can safely conduct in-person hearings.
Virtual attendance at hearings was a useful tool in pre-pandemic times, of course. Witnesses were able to participate in hearings if they were not able to attend in person, due to either distance or reasons of accommodation. However, in my experience it was relatively rare to have a full hearing done remotely.
Part of the reason why full hearings were rarely done virtually prior to the pandemic could be the result of inertia. Traditionally, the norm has been for in-person hearings and there was no real pressure to do otherwise. Now that we have been forced to do all our hearings virtually, we are in a better position to see the benefits and limitations of virtual hearings.
I have already written about issues relating to access to technology as well as privacy in virtual hearings. In this column I will focus on the impact of virtual technology on the conduct of the hearing itself. Many of the observations are speculative at this point – we need more research, especially involving the comparison of pre-pandemic to pandemic hearing outcomes.
Nine years ago I wrote a column about the physical settings of hearing rooms and the impact those settings can have on interactions at a hearing. It is worth revisiting some of those observations about the hearing room setting:
Physical space and distance are important symbols of human interaction and also contribute to the quality of those interactions. Physical proximity has a subconscious effect on people. One study shows that the closer an individual is to another person (while respecting personal space), the more positive the attitude towards the other person. Another study, indicates that people in close proximity are rated more sincere, natural, likeable and loving than others. In addition, those individuals are also perceived to be less dominant by their peers. Distance is also associated with safety. This means that a greater distance is preferred in tense situations.
Eric Kornhauser and Shawn Whelan have noted:
The need for congruence between the content of our communication and the environment in which it occurs should be obvious to lawyers, especially courtroom advocates. Traditional courtrooms provide a classic illustration of the explicit messages about process being supported and promoted by the attendant physical surroundings. Everything about the court environment is intended to send a clear message to participants – from the way judges and barristers are dressed, to the configuration of seating arrangements. All of the vivid courtroom images support the important messages which the adversary system seeks to convey – messages about independence, authority, distance, sobriety, respect, neutrality – a place where decisions affecting people’s lives can be made impartially and fairly.
Virtual hearing rooms do not look at all like in-person hearing rooms. We try to create the illusion of the same settings – with break-out rooms, waiting rooms and the hearing room. But when we enter these virtual spaces, we all are seen differently than in-person. We also interact differently than we would in-person.
Tribunal hearings are supposed to be informal – although only in comparison to court proceedings. In virtual hearings, there have been reports of witnesses addressing adjudicators as “bro” and participants, including lawyers, not dressing appropriately for a hearing. The tension that witnesses often felt when in a formal hearing setting is reduced when they can testify from the comfort of their own home. This informality can have the effect of reducing the authority of the tribunal through the “performative rituals” of an in-person hearing. Although tribunals are not as formal as courts, the observation of Dr. Ayodele Akenroye in a recent Slaw column is still valid for the tribunal setting:
Also, the all familiar long-standing court rituals of the court clerk ushering in the judge by yelling “Oyez, Oyez, Oyez, anyone having business before the Queen’s Justice of the Superior Court of Justice draw near and you shall be heard, Long live the Queen”, standing up when the judge enters, and bowing to the court on departure, all have performative effects of casting the judge as legitimate, an independent authority and the custodian of our community values. It also sets the stage for the acceptable civil modes of address as well as respectful and polite behaviour expected from all the courtroom participants. Virtual hearing tends to remove some of these perceptual cues which normally trigger the performance of this long-standing symbolic and performative rituals.
The CBA Covid Task Force also noted in a Slaw column that the physical setting of a real hearing room “encourages decorum and respect for the rules which are important to ensure fairness and trust in the process”.
When you enter a real hearing room, you see the whole upper body of the decision-maker and of all participants. The way we use videoconferencing technology means that all participants are generally seen from the mid-torso and up. Why is this a concern?
Some of the early research on “Zoom fatigue” provides some potential explanations of the differences in the perception of participants in a videoconference setting. Jeremy N. Bailenson has written an article providing a theoretical argument for the causes of Zoom fatigue. He suggests that some of the potential causes include cognitive overload, observing yourself on screen for extended periods, and reduced mobility because of the need to stay within the webcam’s frame of view. What is interesting from a human communication perspective though is his observation that the measured distance from our face to the face on the screen is about as close as you would get to someone you are in a close relationship with:
… In an elevator, people are forced to violate a nonverbal norm—they must stand very close to strangers. This exceeds the typical amounts of intimacy people tend to display with strangers and causes discomfort. As a result, people in an elevator tend to look away from the faces of others by looking down or otherwise averting their gaze in order to minimize eye contact with others. People decrease one cue to compensate for a context-driven increase in another.
On Zoom, behavior ordinarily reserved for close relationships—such as long stretches of direct eye gaze and faces seen close up—has suddenly become the way we interact with casual acquaintances, coworkers, and even strangers.
But with Zoom, all people get the front-on views of all other people nonstop. This is similar to being in a crowded subway car while being forced to stare at the person you are standing very close to, instead of looking down or at your phone. On top of this, it is as if everyone in the subway car rotated their bodies such that their faces were oriented toward your eyes. And then, instead of being scattered around your peripheral vision, somehow all those people somehow were crowded into your fovea where stimuli are particularly arousing. For many Zoom users, this happens for hours consecutively.
Bailenson was writing this from the perspective of the cognitive load of this unnatural “staring” and its impact on fatigue. But it is also a form of human communication that we are unaccustomed to and certainly does not come naturally.
At an in-person hearing, it is the norm that the witness will direct his or her answers to the decision-maker, not the counsel asking those questions. In a virtual hearing, this is harder to monitor. We see the witness on our screen but there is no way of knowing where they are directing their gaze, since you do not know what faces are on their screen and the order of those faces on their “grid” or screen view. Why does this matter? At one level it doesn’t. It likely does not have a great impact on the quality of the testimony. However, directing answers to the decision-maker reinforces to the witness that that is the person they need to convince – not their own representative.
Obviously, people need to be heard during a hearing, and preferably clearly heard. The quality of sound and video in virtual hearings can be uneven. It is distracting when the voice and the body movements are out of sync. Also, the flow of testimony can be disrupted when a witness’ voice cuts out or becomes garbled. Virtual hearings don’t flow as smoothly as an in-person hearing. The flow of human communication is mediated through the technology. Most videoconferencing platforms only allow one person to speak at a time. When we are in-person, interruptions are often handled seamlessly since we can hear both people at the same time. In a virtual hearing, there are often stops and starts when people start talking when they think a question is complete. While we have all been admonished from a young age about not interrupting, talking over another is an accepted part of hearings. It allows for timely objections to evidence and it also allows for the redirection of a witness to answer the question.
Experienced representatives know to watch the pen or typing of a decision-maker for a variety of reasons. Firstly, to see if the decision-maker is keeping up with the testimony and to slow things down if he or she is not; secondly, to judge how the testimony is being received – little notetaking is often a signal that the representative could safely move on. In our pandemic virtual hearings, the hands of the decision-maker are rarely visible because all participants are close to their screens, where the web camera usually is. Some of this is easily addressed by the decision-maker telling participants to slow down, or politely asking representatives to move on to a different area of questioning.
It can be difficult to read body language in a virtual hearing – either because not all the body is visible, or because video delays mean that movements are jerky. There were some initial objections to virtual hearings because of concerns by counsel that credibility could not be adequately assessed virtually (see, for example, Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933). This view that credibility can be assessed by “demeanour” is a persistent myth in the legal world that has no basis in science. Researchers are discovering that a better way to assess credibility is through verbal cues. Without dismissing demeanor totally as an indicator of credibility, adjudicators quickly beat back the attempt to delay proceedings on this basis, in one case noting that if the hearing was in-person, everyone would have to be masked making it more difficult to see faces during testimony.
Bailenson talks about the naturally flowing non-verbal communication in face-to-face interaction, where we are rarely consciously paying attention to our own gestures or other non-verbal cues. On Zoom participants need to work harder to send and receive these non-verbal signals. He provides the examples of centering oneself in the webcam’s field of view, nodding in an exaggerated way for a few extra seconds to signal agreement, or looking directly into the camera rather than the faces on the screen to try and make direct eye contact when speaking. Receiving non-verbal cues is perhaps more important in a hearing. In an in-person setting, people can gain insights from head and eye movements, which can signal turn-taking, agreement or disagreement. Bailenson notes that in Zoom, “gaze is perceptually realistic, but not socially realistic”. In one virtual reality experiment where listeners had direct eye contact with a speaker for 8 minutes straight, as opposed to the typical in-person experience of only eye contact when appropriate, the listeners did not feel “in tune” with the speaker and did not rate the interaction as “smooth”.
In addition, we can misread non-verbal cues we receive on video when we apply our experience from in-person communication. For example, on Zoom it may appear that two people on a screen of faces are exchanging glances which would impart social meaning in-person, when in fact Zoom participants are not all looking at the same ordering of faces on the screen.
Presumably, people will adapt to the technology and learn the distinction between in-person and virtual non-verbal cues. In addition, if we re-think the placement of webcams so that we can all see more of each other, that might also address some of the feelings of an invasion of personal space. Unfortunately, we also need to be close to our computers since we are using them to view exhibits and manage the technology associated with the hearing.
An interesting contradiction in virtual hearings is the relative informality of the hearing itself and the formality of interactions outside of the virtual hearing room. This might have a bearing on settlement rates, although we do not have the data yet to be able to assess that. Although a virtual hearing will often have virtual breakout rooms and sometimes even virtual hallways that allow for off-the-record discussions among representatives and with the decision-maker, using those virtual rooms requires a request to the “host” of the hearing. It is also a very visible request that is noticed by all participants at a hearing. At an in-person hearing, there are more opportunities for casual conversations in the hallways that can open the door to more formal settlement discussions. In addition, some of these interactions – especially between representatives – can make hearings smoother and more efficient.
Another difficult factor to assess is whether the significant disadvantage in relationship building in a virtual setting has had an impact on settlement or resolution of issues during a hearing process. There is always something forced about virtual social interactions. At an in-person hearing there was always an opportunity for representatives to chat about family or social events while waiting for the hearing to resume. Now, we all usually turn off our cameras and do other things while we wait.
The pandemic has been challenging for human interactions. The focus of many of us has been on the loss of personal and family interactions during what seems like a never-ending series of lockdowns. Although slightly less important than family and friends, a sense of community in our work is also important. The quality of administrative justice is enhanced by the sense of community that we get from in-person hearings. While virtual hearings should be a more prominent tool in our administrative justice toolkit in a post-pandemic world, I hope that in-person hearings will remain the norm.