The 2019 novel coronavirus disease (COVID-19) crisis came at an awkward moment for my practice, threatening to derail several hearings in the diary, including a substantial three day High Court trial of a preliminary issue (Towergate v Clark).
We were lucky to have a trial that required no live evidence. The facts were not disputed, although they were relevant and extremely voluminous. The parties had to work with approximately 16 bundles of 400 pages each.
Fortunately, the High Court responded to the challenge magnificently. Ultimately, the hearing proceeded and was a great success, though it was a steep learning curve for all involved. In the following blog, I hope to share some of the useful lessons the experience taught me, along with some points from two or three other remote hearings in the past few weeks. This will be presented from an advocate’s view point. For some useful thoughts from a solicitor’s point of view, see the blog post from Andrew King of Lennons Solicitors.
Before the hearing
Skeleton arguments are now more important than ever. Video hearings are proving a practical alternative but they do have drawbacks. Natural interaction is more restrained and a back and forth with interruptions is not very practical. My experience of judges so far is that they will be less interventionist, but will want your submissions to be all the more concise and limited. Skeleton arguments are therefore crucial for two reasons: setting the scene before the appearance on camera, and providing structure to submissions. More than ever, the written argument is an important chance to sway the judicial mind. In addition, the skeleton should also be used as an aide to the judge in finding the key documents, giving references that are easy to use in electronic bundles.
On that subject, when providing skeleton arguments, or bundles of evidence or authorities, make sure that the bundle is easily handled electronically and that you are familiar with how to search and locate content. Two big tips here:
- Make sure that all bundles are paginated so that the numbers tally with the pdf page number in the top corner. This allows everyone to quickly type in a number and get to the same page.
- If you can, make use of pdf functions, such as hyperlinks in an index or bookmarking, that lead directly to the needed pages.
Make sure that you have clearly communicated with your professional team and lay client in advance of the hearing, to ensure that everybody understands what is expected and permitted of them once the cameras are on. In my case, we ensured that any communications with my leader would be extremely narrow, and filtered by me as junior. Since I was often not speaking, I could field a wider range of comments and questions, but if there is a risk of that going too far, it is necessary to be firm to avoid distraction; setting ground rules in advance will help.
Finally, consider communicating with your opponent. One major drawback of remote hearings is the loss of a chance to see an opponent in person and gauge whether it may be possible to narrow the issues or even discuss settlement. This is the almost inevitable natural consequence of two good advocates sitting in the same room, and it is a shame for that to be lost. To mitigate that disadvantage, an approach in advance by email or even by arranged video call can help. In some cases, this will be an invaluable way to save precious time in the hearing, where a point can be easily agreed. As always, appropriate precautions should be taken to ensure that both advocates understand and agree whether such communications are privileged or subject to instructions.
During the hearing
The art of advocacy has always been a journey; all good advocates will agree that they are always learning. Moreover, one method does not fit all, and it has always been necessary to adapt to the particular case, and the particular judge. Now it is important to consider also the medium of delivery. Remote video hearings offer new challenges and opportunities.
On an elementary level, the experience is very different visually. Ordinarily, an advocate is several metres from the judge across the room, often at a lower height. Depending on eyesight, an advocate or judge’s general facial expressions will be visible, along with any obvious body language. All of these things give important cues to an advocate, allowing them skillfully to switch approach when submissions are ill-received, or to press home the winning argument in the contrary position. A good advocate can of course also use their own body language to project confidence in their argument.
In a video hearing, everyone’s faces take up the bulk of the screen and suddenly micro-expressions and facial details are on full view. It is therefore important to assume that you are always being closely examined. Presentation is more important than ever. Perhaps more importantly, however, it is critical to ensure that expressions are carefully regulated. You are always on view; you must ensure that you do not let the poker face drop when faced with an opponent’s killer point. Equally, it is a good idea to guard against continual dismissive expressions in the face of what others are saying. With your face so clearly on display, such expressions can quickly look very rude and unprofessional.
Video communication is less direct, and therefore less engaging. In the serious surroundings of a courtroom, people rarely let their attention wander. When viewing a screen from a home study, the situation is very different. Even judges and advocates can occasionally lose concentration. Focussed submissions supplemented by written argument are therefore paramount. It can also help to try to maintain eye contact insofar as possible. This takes practice, but, especially when you are making your best submissions, try to look directly at the camera so that the judge knows that at this critical point in your argument you are speaking to and engaging with them directly; they need to pay attention!
Consider the technological advantages that might arise. In my trial, there was a complicated and technical argument based on an analysis of six Excel spreadsheets. In order to understand the point, it was necessary to filter and sort the data in several different ways. With the court’s permission, I was able to share my screen to show this process in action. This would have been difficult, if not impossible, in a normal courtroom, but it became a highly effective tool in the remote hearing. Note that it is usually necessary to ask the court in advance to activate you as a “presenter” (that is, on Skype for Business). Also, it almost goes without saying that you should ensure anything that could be seen on your screen while switching between windows is court appropriate, and of absolutely critical importance: ensure you do not display anything confidential by mistake.
Witness evidence is a technical challenge. In the first place, ensure that there is understanding with the court as to the way in which the oath is to be administered, and whether there will be a need for the witness to have a relevant religious book on hand. Prepare the witness for the experience by running through what is expected of them, and assisting them in how to present themselves professionally, even when their personal setting may be informal. Make sure that they understand the need not to have anyone in the room who is not permitted by the court, and not to have any notes or other documents to hand other than trial bundles. Check that they are not conferring with anyone midway through evidence. Set these expectations in advance.
Expect cross-examination to be less fluent. Remote hearings are ineffective when participants speak over each other, so ensure that questions are short and precise, and give clear signals when an answer is expected. Avoid multiple questions and statement questions that may depend on the subtleties of inflection.
Finally, from a practical point of view, be aware of the sound and view of your environment, and try to ensure that there is nothing inappropriate or distracting. Mute your microphone when not speaking. Check that the camera angle is appropriate so that you are squarely in view and not partially cut off, and so that your audience is not looking up your nose.
The thoughts set out above only touch the surface. Remote advocacy is a brave new world, and wherever there is upheaval and change, there is opportunity. It is likely that even when society returns to normal, there will be a greatly increased appetite for remote hearings. We are learning not only that they can be just as effective, but that they can be a proportionate means of getting things done cheaply and quickly. It is therefore essential to develop and hone these skills for the future.