By DLA Piper UK Partner Jean-Pierre Douglas-Henry and
DLA Piper Spain Of Counsel Ben Sanderson
The legal fraternity has been hearing for a number of years that the profession needs to change due to many aspects of it being outdated. The reason for this is simple, no business – law firms included – can hope to survive and remain on the cutting edge of innovation unless they adapt and leverage opportunities presented by digital.
The virtual courtroom is a consequence of the COVID-19 pandemic in many jurisdictions which holds many great benefits for the justice system and for clients including potentially reducing legal costs coupled with efficient adjudication of matters.
DLA Piper recently published an empirical study, titled Virtual hearings: Surveying the global landscape, which examined the use of virtual hearings as a result of COVID-19 confinement measures across the world. Data that was used to uncover insights was collected from a wide range of the firm’s sources (both the civil and common law practices) covering court litigation, arbitration and public inquiries. The survey analysed the experience of the firm’s lawyers and reflects on client feedback of their experiences with virtual courtrooms.
Respondents from the survey noted that whilst the concept of a virtual hearing is a positive step forward, complex commercial disputes may not be amenable to remote hearings in a virtual courtroom because of the need for detailed technical presentation and models often required. This essentially means that it is important for legal professionals to first study the nature of their client’s case in order to determine whether it is really in their best interests to proceed by way of remote hearing in a virtual courtroom.
In terms of readiness to adapt to virtual courtrooms, the survey showed differing levels of preparedness
among national courts in a number of jurisdictions. Some courts have been nimble in developing procedural orders to address the key steps needed to adapt to virtual hearings. In the disputes market for example, we should expect to see in the not too distant future wider use of automation driven by artificial intelligence and algorithms, from programmes used to draft pleadings to software developed to assess prospects of success.
The digitization of disputes will apply to all sections of the legal market – it will facilitate access to justice for those with limited means as well as influence how boardroom directors and General Counsel (GC)s evaluate risk and maximise opportunity.
Adapting to new technology will always have its challenges. This is particularly true where internet bandwidth is limited. One respondent who participated in a virtual hearing before the courts of the British Virgin Islands described the experience as a “disaster”. Lawyers for the parties chose to use Skype but had to abandon that in favour of Zoom, for technical reasons.
One practical issue to consider is that it may not be possible to conduct virtual hearings using certain products. In particular, many video calling platforms are blocked in the Middle East and in China, for example, and freedom of access to all online service providers is not guaranteed. Licensing and regulatory factors therefore need to be taken into account.
A principal concern expressed by respondents was the handling of witness evidence during remote hearings. Hearings are the culmination of often a long legal battle in which factual and expert witnesses play a crucial role, and a significant amount of time is spent examining witnesses. A hearing is the opportunity for the opposing party, and the court or tribunal, to test that evidence.
Issues such as the credibility of a witness, inconsistencies in the evidence presented, as well as independence and impartiality, can often only fully be explored during cross-examination. As a result, the hearing can make or break a party’s case and lawyers and clients will be reluctant to lose this opportunity.
Feedback in respect of the handling of experts largely echoed that received in respect of fact witnesses. One respondent noted that cross-examination of the opposing party’s expert proved considerably more difficult without the legal team and his party’s witness at his side helping to identify weaknesses in the testimony. While WhatsApp group chats and other instant messaging options provide a quick and easy method to communicate, it was felt that this fell short of the usual hearing experience.
A theme that was raised by a number of respondents was privacy which is more an issue for arbitration than for litigation as client concerns about privacy will be overcome by fixes to known limitations of certain platforms. But even arbitration itself is moving towards embracing greater transparency.
Looking to the future, the presumption of confidentiality in arbitration is fast being eroded from a number of directions and therefore concerns regarding privacy may hold less weight over time.
Even after COVID-19 recedes, it is clear that virtual hearings will continue to be used. The interesting question, though, is how they will be used and whether virtual hearings will seek to replicate a traditional hearing room experience or offer something new and different? If we focus on what aspects may be lost in virtual hearings, we are missing out on the crucial other half of the debate on what is better about virtual hearings.
As with the automation of legal services, the debate about virtual hearings should not be fixated on replicating existing practices in a new platform – such an exercise would be futile and lacking in ambition. Digitization and the use of technology should drive us to deliver in fundamentally different and better ways. Radical change requires us to view the world differently, even if that means challenging hundreds of years of tradition and re-writing the rule book.