It was just over a year ago (on 16 January 2020) that the UK government announced that TV cameras would be allowed to broadcast from Crown Courts in England and Wales for the first time, sweeping aside centuries of legal tradition.
At the time, it seemed revolutionary. The Crown Court (Recording and Broadcasting) Order 2020 would allow the broadcast of the sentencing remarks of High Court and Senior Circuit judges, in a move that was heralded as a landmark. Yet, just two months later, the UK was to be plunged into a national lockdown in response to the COVID-19 pandemic, with all court proceedings swiftly suspended.
After a short period of uncertainty, it became clear that it was essential that access to justice was not furloughed; it would have to continue virtually. The first remote Commercial Court trial in English legal history (National Bank of Kazakhstan and the Republic of Kazakhstan v The Bank of New York Mellon, Anatolie Stati and others) kicked off on 26 March 2020 and since then, the disputes market has largely gone virtual.
Having experienced the shift to virtual disputes, both from an advocacy and an advisory perspective, the last ten months has created a whole new raft of virtual courtroom etiquette, many of which look set to replace the old, occasionally arcane, systems. Here are some of the lessons we’ve learnt.
Check the tech
Parties should use best efforts to ensure that the connection between the different parties, officials and venues are as smooth as possible. If sounds and images are not being accurately and properly aligned, it can cause delays.
In fact, technology providers have almost become a new third party in many cases. An expert witness or a litigation funder could be considered a third party to most disputes, but technology and logistics are increasingly critical third parties for large virtual disputes. Services such as livenote for transcripts remain available, whereas video conferencing outsourcing, or remote assistance with the management of e-bundles are useful options to ensure cases run smoothly.
The IT aspects for virtual trials have become a whole new sub-category within disputes. The choice of platform and buy-in from the court is a key factor to consider, and choices are aplenty. For instance, we have had success using the Zoom platform, administered by a third party “platform agnostic” supplier, while other platforms include Google, Skype and Cisco WebEx.
Each platform can have pros and cons (whether that is historic privacy/security issues, picture and audio quality, speaker views, and so on), so find the best one for you.
The show must go on
Our experience is that courts are not inclined to adjourn or postpone generally in the sectors in which we work, such as international commercial matters and public international law matters, even from the beginning of the pandemic.
This is a balancing act. On the one hand, there are about the possible unfairness of proceedings, such as under Article 6 under the European Convention of Human Rights (the right to a fair hearing), particularly if technological issues during the hearing cause problems. Likewise, in hearings involving issues such as the assessment of a witness’s credibility or reliability, cross-examination is less pressured in a virtual hearing, so more difficult for the court or tribunal to form an impression. There is also the concern that witnesses may be coached off-camera or reading from a script hidden from the court or tribunal’s view.
Even so, the courts seem to fall on the side of pressing on without adjournments.
Courts learning from tribunals
Arbitral tribunals have traditionally been more open to adopting new technologies and flexible hearing procedures than courts, including video-conferencing in proceedings. There is the 2018 Seoul Protocol on Video Conferencing in International Arbitration, which was introduced to identify potential issues with videoconferencing (for example, due process issues, confidentiality issues and practical difficulties) and to address them effectively by, for example, making necessary preparations in advance.
There were next to no guidelines in place for litigation, so the courts appear to be quickly “catching-up” in the technology game.
Presentation, both of physical documents and of the proceedings themselves, are perhaps under the spotlight more. It is relatively easy, in platforms such as Zoom, to bring documents onto the shared screen almost instantaneously. Parties should also consider taking advantage of opportunities for creative hyperlinks in electronic bundles, which can lead to more seamless cross-examination.
In a traditional courtroom, of course, there is a fixed physical space. However, when presenting on a videocall, a participant must consider the placement of camera device, lighting, background, choice of outfit, body language, as well as the use of the voice. The court has less visual interest; creating interest using vocal techniques (tone, inflection and pace) is key.
Not silencing witnesses
A virtual hearing is helpful in that it is easier to manage remote witnesses, remote experts and parties in different time zones. One option is to shorten hearing days if participants are located in materially different time zones, although this can prove difficult where there are multiple participants located in many different time zones.
There are also additional measures to assist dual-language cross-examination with interpretation. Generally speaking, witnesses and experts may require more time to present information and adjusted timeframes may also be necessary for interpreters. Simultaneous translation is unlikely to be well-suited for a remote video proceeding, and thus consecutive interpretation is likely to be preferred.
No judge dread
Judges, on the whole, have been amenable and flexible to the unprecedented challenge of a virtual courtroom. Indeed, perhaps even more so than a physical court. When technical issues have cropped up, they have been patient and sympathetic. Virtual hearings raise new opportunities in terms of public access, and judges have had to confront the possibility for trials to be streamed on YouTube (as was the National Bank of Kazakhstan case), but also balance these new opportunities with the need for privacy in individual cases, and the need to restrict rebroadcasting and copyright outside of the jurisdiction, and the potential “global” audience for English proceedings.
Less pomp and circumstance
A lot of the physical, even theatrical, aspects of the courtroom seem to be jettisoned. There is no standing or bowing to the court, while wigs are largely out too. Only the judge and counsel are on camera.
It’s good for the environment
Virtual hearings use a lot less paper. This can cause some issues, such as not being able to hand up documents or spare copies as you might in a physical case, but using digital copies does mean less paper and printing is needed. Lawyers often offer to send hard copies of documents to the court but, in our experience, the judge has been satisfied to proceed with soft copies only. The cost (in both monetary and environmental terms) of travel, accommodation and waiting times for parties has also been near-eradicated.
Never, ever, rely on the “chat” function
It is not recommended to use the “chat” function of your chosen video conferencing platform to communicate with colleagues. The risk of accidentally sending messages, which may be privileged, confidential or sensitive, to more than your intended audience is simply too high. Always use a separate chain of communication to keep correspondence with counsel, solicitors and other parties confidential and save potential embarrassment. And remember to put yourself on mute.
The return of hearings at which judges, clerks, counsel, solicitors, witnesses, experts, transcribers, translators and the gallery can all attend in person still appears to be some way in the future. When restrictions ease, it is likely that certain hearings will proceed as an amalgamation of in person and remote hearings, with a limit to the numbers of people present in the court room, and a virtual link still available for those required to stay at home.