Civil proceedings: questions going forward after the pandemic

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Summer is finally here, and hopefully marks the beginning of the end of the pandemic. As in many business areas, it is widely discussed how experiences gained during the pandemic will influence how civil proceedings before Norwegian courts are conducted. This article presents some of the views and opinions that have been brought up in this debate, and our own predictions.

When the lockdown was a fact in March 2020, Norwegian courts demonstrated a great willingness to keep the wheels of the Norwegian litigation system going by rapidly transitioning to conducting court hearings through video meetings, and by resolving a larger number of cases through written proceedings. The question going forward is whether experiences gained through the pandemic should change how civil procedures are conducted, and if so, what these changes should be.

In a letter to the Court Administration this January, the Norwegian Bar Association wrote that the experience with digital court meetings were not only positive. A common experience among the members was that the dignity of the court hearing, i.e. the solemnity and seriousness experienced in a courtroom, does not apply to the same extent in a video meeting. The Norwegian Bar Association mentioned witnesses that had appeared on-screen in a bare upper body. Another shared experience was that the ability to assess the credibility of witnesses is better in a courtroom than on a video screen. Seeing the witness in person makes it is easier to e.g. determine if the witness uses a manuscript, assess body language and ensure that no one is complementing the witness.

The views of the Norwegian Bar Association are elaborated in this article.

In an article by law professor Anna Nylund this April, with the title «The pandemic will leave lasting traces in civil proceedings«, Nylund emphasized that the pandemic appears to be accelerating a shift towards more written proceedings, and that the pandemic driven digitalization has shaken the basic ideas underlying the current procedural rules, where oral communication is assumed to be synchronous, while written communication is asynchronous and time consuming. Nylund ends her article by stating that we must take advantage of changes in the wake of the pandemic to develop civil procedures based on current technology, and not old technology.

The full article is available here.

In a litigation seminar in June, the Chief Justice of the Supreme Court, Toril Marie Øie, emphasized that video meetings probably will be used to a greater extent by the Supreme Court in exceptional circumstances, but that the vast majority of the hearings will take place physically.

The views of the Chief Justice are further elaborated in this article.

Our prediction is that court hearings probably will be conducted in the same way as before the pandemic, but that video meetings will be used in favor of the telephone, when physical presence is not an alternative. The time for distance examination by telephone is probably over.

However, the question of whether a greater portion of written submissions can contribute to a more effective litigation, will probably be a future topic for discussion and debate in the wake of the pandemic. Nevertheless, we also believe that to achieve the goal of more effective court hearings, a substantial part of the solution lies within the rules on «active case management», where judges as well as lawyers play a crucial role. This topic is also discussed in the latest issue of the podcast Dommerpodden, available here.