Virtual Hearings and Remote Advocacy for Civil Barristers

Even as we read increasing reports of a vaccine that may bring an end to our cycle of national lockdowns – the question remains as to what will become of our practice and how we might adapt to a post-pandemic life at the Bar.

For most barristers, our professional lives have been upended and transformed in 2020. The Criminal Bar has seen closures of entire Chambers.[1] In October 2020, the Bar Council revealed that almost 30% of publicly funded barristers are unsure whether they will renew their practising certificate in 2021. There are of course many reasons why certain practice areas have been hit harder than others. The inherent challenges of jury trials and the necessity of in-person attendance for certain hearings created a multitude of adjournments and ever-growing backlog of unheard cases.

But our experience at the Civil Bar has been notably different. In April 2020 Western Circuit civil barristers reported a drop in work of approximately 90%. For weeks we had to wait patiently as we saw a rare listing entered into our diary only to see it vacated the day before.

By June 2020 the court listings were almost at capacity primarily due to a national utilisation of remote hearings. Not only were we seeing our diaries fill up but were also able take on new briefs which were previously untenable on account of overheads or travel concerns. By virtue of virtual attendance I could conduct an Application in Nottingham a 10:30 only to move to a CCMC at Southampton for 14:00.

At the time of writing the long wait for a vaccine appears to be coming to an end. But for many at the Bar we are left wondering what will become of our newfound digital practice. Some have become accustomed to foregoing the morning commute to a far-flung County Court. There is a growing question as to how our professional lives might be impacted in a post-Covid world.

I note the following comments from the Lord Chief Justice at the Bar Council bar and Young Bar Conference on 18 November 2020:

‘As a result of the Covid emergency we have been engaged in the biggest pilot project ever in the courts and have taken three steps forward. We are likely to take one step back but there is no going back to February 2020. Careful scrutiny of the experience of using technology over the last eight months, and scrutiny of the experience we will have over however many more months the Covid emergency endures, will inform the extent to which the use of technology to allow fully remote hearings or hybrid hearings will be baked into the system.’

He went onto explain: ‘It is clear already that many procedural hearings can be conducted perfectly well remotely. The days of two lawyers travelling for an hour or two, sitting around outside court and then going in to argue for 15 or 20 minutes over a procedural matter are gone for good. So, too, for many short appeals and other hearings which do not require the attendance of witnesses.’[2]

 Just as there came a moment in time when traditional barristers were compelled to become familiar with the use of email and digital files – so too shall the modern Bar have to find fluency in attending remote hearings.

But in order to compete in an inherently adversarial profession we will have to ensure we are not just advocating in these hearings but that we are doing so effectively.

There are of course several kinds of remote hearings which will be addressed separately. However, there remain some common principles which can ensure efficiency across the board.

Bundles

In the absence of a physical bundle which every attendee can examine and refer – confusion and cross purposes are an ever present danger. After cross examining a witness on a series of photographs you may discover that the witness’s page references were from a different PDF which did or did not include the index. The entire line of questioning will need to be repeated.

The best way to avoid such problems is to contact your solicitor and opponent before the hearing to ensure everyone will be using the exact same trial bundle with the same numeration. Guidance has been issued on the proper use of bundles and should be reviewed.[3] Uniformity will need to be confirmed with the Judge and any witnesses before evidence commences. Five minutes of clarity may save an hour of confusion later on.

Conferences

 When conducting a remote hearing there is often a failure to conduct the conferences with your client or discussions with opposing Counsel. Any civil barrister will attest to the value  of both practices. Taking the time before the hearing to retrieve the contact details for your client and opponent can ensure this essential stage is not overlooked.

Telephone Hearings

 The primary benefit of a telephone hearing is that is not dependent on all of the participants having a strong internet connection throughout. The inevitable drawback is that it does require sufficient phone signal.

There is also a tendency to inadvertently talk over one another as it is not always possible to ascertain whether another party is talking until it is apparent that neither speaker is being heard over each other.

It is worth ensuring that the hearing is conducted by way of consecutive contributions rather than allowing any kind of free for all exchanges. As is often the case at the Civil bar we are best off approaching telephone advocacy by channelling the spirit of Samuel Jackson’s Jules Winnfield: ‘You were finished? Well allow me to retort.[4]

Video Hearings

 There are several kinds of video hearings a helpful summary of which has been provided by Luke Ashby:

  1. Skype for Business (S4B). This is supported by HMCTS; all Judges have access to it and should be able to use it. It has some limitations, not least it is being retired by Microsoft in favour of Microsoft Teams (MS Teams). In the writer’s experience MS Teams is superior and preferred by most (but not all) judges.

 

  1. MS Teams. As noted above this is the successor of Skype. Training is available to any Judge on how to use it. The writer has successfully carried out a number of hearings using MS Teams and it is emerging as the preferred platform in many Court centres. It appears to be secure and is generally reliable. It is not as intuitive to use as Zoom nor is functionality as good, but it is more than sufficient.

 

  1. Zoom. Zoom is not supported by HMCTS, but ultimately choice of platform is up to the Judge and it is being used. It has some drawbacks, principally: it is limited to 40 minutes unless someone has the paid for version and there are questions over whether it is secure, as it does not have end to end encryption. The lack of encryption may be less problematic in civil hearings which are public, but of more concern in private hearings or for client conferences. The advantage of Zoom is its user-friendly layout, intuitive design and popular use (many clients have already used it).

 

  1. Cloud Video Platform (CVP). This is HMCTS’ bespoke video platform and their preferred option. The rollout has been subject to numerous delays, but it is now starting to make an appearance. It is secure and allows for easy public access. It must be accessed using Google Chrome in order to work properly. In the writer’s view it is inferior to all of the commercially available platforms outlined above; functionality is not as good (for example there is no facility for breakout rooms and there is less control over screensharing). HMCTS is working on its successor which is called Fully Video Hearings (FVH); that is not likely to be available for some considerable time. [5]

 

And finally

 

As with all evolutionary developments in this historic profession – those who are willing to adapt are those who thrive. Whether or not we approve, Covid 19 has acted as a catalyst propelling the distant future of commonplace remote hearings into our present day working lives.

 

We have the opportunity to build a national practice from the comfort of our homes. Of course for many this will necessitate constructing a home office, installing sound insulation or sedating our children. But in any event, the revolution is upon us and technology appears to have prevailed. And as with any revolution – it pays to be a champion of the winning side.

Alexander Whatley, Barrister at 3PB Barristers

[1] https://www.lawgazette.co.uk/news/london-criminal-set-to-close-after-covid-19-pressure-/5105344.article

[2] https://www.judiciary.uk/wp-content/uploads/2020/11/20201118_Bar-Council-Conference-2020-LCJ-address_FINAL-V2-1.pdf

[3] https://www.judiciary.uk/wp-content/uploads/2020/05/GENERAL-GUIDANCE-ON-PDF-BUNDLES-f1-1.pdf

[4] Probably the only applicable moral lesson which can be taken from that particular scene.

[5] https://www.3pb.co.uk/content/uploads/COVID-19-Remote-Hearing-Update-1.pdf

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