Video Courtrooms: Solving The Problems of Forum Non-Conveniens
by Ben M. Weinberg
The doctrine of forum non-conveniens gives court the discretionary power to decline jurisdiction when convenience of the parties and the administration of justice would be better served by trying the action in another forum. The doctrine is mainly applied in state courts where there is no right to transfer a case from one state to another. The doctrine, however, is also applicable to federal courts--particularly where a party (usually a defendant) is from a foreign country. As a result, federal courts can grant a dismissal of the lawsuit, even though most evidence and witnesses may be located within the immediate venue. Such a situation allows large multinational corporations to avoid liability even though they may have caused serious harms.
Although an alternative is to litigate in the foreign jurisdiction, this imposes substantial costs on the Plaintiff of having to obtain foreign counsel--usually in civil law countries where contingency fees are illegal, tort recoveries are capped, and discovery is strictly limited. This is in addition to being a foreign plaintiff immersed in the defendant's home "court" advantage.
However, technological advancements in communications are posing a direct challenge to the future viability of this old judicial doctrine. When the U.S. Supreme Court adopted the doctrine in 1947, video teleconferencing obviously did not exist. The use of Video Conferencing alleviates much of the problems inherent in international litigation, and permits a wide range of evidence to be taken and transferred anywhere around the globe. The use of the internet and file transfer protocols allow documents and discovery to take place instantaneously, unless there are authenticity problems. Depositions and direct examinations can occur in real-time, interactively, and translators, if necessary, can be on hand.
Nevertheless, many thorny legal issues remain unresolved. For example, does use of video comply with the Constitutional confrontation clause? How does use of such technology comport with the Hearsay rule? What are the risks and consequences of testimony given under hidden undue influence? And how secure would the transmission be from tampering?
As international business relationships increase in scope and magnitude, the economic pressures will mount for swift resolution of these and other issues. All parties to litigation would save substantial costs by relying on new technologies, and injured plaintiffs would have recourse where before such recourse was prohibitive and largely unrealized.