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Adrian Barnett-Thoung-Holland is a family law barrister at Coram and his practice encompasses financial remedies and private disputes regarding children. He also advises in cases under TOLATA 1996, the Inheritance Act 1975 and applications under Schedule 1 of the Children Act 1989. He has experience in representing clients at all levels of court up to and including the Court of Appeal. He recently did a webinar on “Barder Events, Indirect Contact and COVID-19” via zoom with Rachel Cooper. You can view it here.
In this blog, he looks at the effect lockdown has had on legal practitioners and their practices.
The UK government in the present public health crisis maintains that anyone who can continue working from home should do so for now. And with the age of digital communications, the ability to be accessed from anywhere, you would have thought that the transition from being in physical spaces to digital spaces was an easy if obvious progression for many of us, the family courts included. Hearings are taking place via telephone and video software and for all intents and purposes that approach seems to be working.
As with so many things in life, it just isn’t as straightforward are devolving to: ‘digital: sufficient’/ ‘in person: unnecessary.’ So after about eight weeks of lockdown (I have actually lost count at time of writing), here are the lessons we can learn for the ‘digital’ and ‘telephonic’ family courts as the COVID-19 crisis continues.
1. Face to Face Contact is Vitally Important in Family Proceedings
Family law revolves around people. Nearly every scenario engenders engagement with the most highly emotionally charged subject matter. Clients need more than legal advice, they also need that empathetic response and human engagement – a machine could dole out legal advice without the need for any emotive connection.
Engaging with someone via telephone or even video software just isn’t the same as physically being present. That said, it has its uses and this litmus test for the digital family court has certainly exceeded expectations in some ways. However, nothing can really replace the value of human engagement in person or seeing a witness give evidence in a courtroom rather than over the phone.
That goes for physical presence in the courtroom as well. Even now, going to a court building holds a certain level of pomp and circumstance that focuses the mind; emphasises the importance of the issues at stake to the parties. A judge has the opportunity to address the parties face to face, to express their views or decisions on a case.
2. Travel has reduced but will still be necessary
Obviously, I’m not traveling to chambers or to court. Some would say that this is a good thing, reducing the strain on public transport, minimising the need for early rising or, worse, staying overnight away from family.
I would counter that by saying traveling is simply an ordinary part of practice in any event; countless arguments have come to me on the early morning trains or in the car en route to court. Traveling gives time to reflect and think on matters in a new perspective. As stated above, there is much potency in presenting a case in front of a tribunal in person rather than on a video link or by telephone.
This is unlikely to change after the lockdown ends and indeed, some courts are already preparing to open their doors with strict conditions in place. Family lawyers might find that they go to court less often depending on how widespread telephone hearings become after this all ends but certainly, the crisis is incapable of changing the need to attend court buildings in many cases.
3. COVID-19 Can’t Change the Importance of ‘In Person’ Hearings
…which leads me to my next point…
Countless colleagues tell me of the challenges of video links, telephone hearings and technological ‘prehistoricism’ that has plagued the courts in the past. Sometimes good, sometimes bad, the courts seem to be successfully organising and running hearings via telephone and other mechanisms. From all reports, this seems to be working.
This raises new questions for many practitioners; could we all be phoning into courts in the morning instead of boarding a train (or three)? Certainly, I appreciated the opportunity to represent a client in Cardiff by telephone rather than in person…. That said, there is no scope that the court system will permanently remain digital for the simple reason I made before about the need for in person hearings. Some hearings though, may be better suited for digital means.
Telephone hearings are certainly appropriate for shorter or less complex matters; many matters reach agreement at court without the need for submissions on contested applications. Some matters have only one issue which is reasonably apparent or can be expressed quite clearly in submissions. Others may only need short amounts of court time. I would theorise that telephone hearings are likely to become more common but incapable of replacing in person hearings altogether.
Trials or contested hearings with complex issues, witness handling, clients with challenges with giving instructions – these require the organisation and facilities that only a court can offer. Contrary to some assumptions, not everything translates to phone as easily as getting people; interpreters, intermediaries and a dozen other facilities still require engagement in personal attendance. That, in some ways, is never going to change.
There are downsides to telephone hearings that are less apparent. For one, most courts that are remaining operating have had to reduce the number of listings per day. While there has long been discussion about how overloaded the court system is becoming, under serving parties by having a sitting judge hearing only two cases in a day in circumstances where they could be fewer sitting judges altogether prolongs the lifespan of proceedings. It’s unclear whether courts will simply transform their lists into telephone or video lists but that also requires time to set up technology etc.
I should add that experience tells me that telephone hearings are not necessarily quicker that live hearings. That might sound strange but the nature of telephonic communications in some ways encourages people to speak more because they have no visual or other sensory cues to tell whether they should stop. Others may find that speaking on a telephone is less comfortable and be halting in their points because they are used to visual recognition that they are being heard.
Worse case scenario: without the visual recognition of communication, conversations collapse as everyone talks over one another…
4. Advocacy Has Evolved
Lawyers are better equipped than ever before at running their practices from home without minimal disruption to clients. However, I for one am not convinced that judges, barristers and solicitors will be reduced to talking heads on a telephone. Not only because of the point I raised prior about the need for direct contact with a client in proceedings but also because advocacy goes beyond just speaking.
To most, telephone advocacy (to coin a phrase) isn’t different from live advocacy. You are still speaking to the judge and all public speakers know that their voice is their instrument and as long as it has the correct pitch, the sound is the same.
But cross examination and the physical presentation of being in a courtroom is lost on a telephone or digital communication. There is no direct engagement, no human connection between the participants in the courtroom. Seeing and hearing someone clearly settled into their home environment in front of a computer screen does not match their submissions live before the judge, even if precisely the same words are being used. The points you would raise and the modes of expression in digital communications (even as simple as written to spoken communications) require the same careful paring like anything else.
Should you be more exhaustive in a telephone hearing? Should you be pithier in person hearings? Or the reverse? Or neither? These are all questions that advocates are grappling with and learning from.
Advocates are learning those distinct cues and unique approaches to advocacy; the differences between the types of hearing. And perhaps that is all for the better and makes us better advocates as a whole.
5. Digital Bundles and Documents
This is probably the most obvious observation: practitioners were already relying heavily on digital materials long before the COVID-19 crisis. Digital evidence, from recordings to PDF bundles, are already well established in the litigator’s arsenal and the courts are becoming more and more able to engage with them. This development has been happening despite the current public health crisis but it’s fair to say that the lockdown has accelerated its importance.
The dreamer in me still believes that we will come to the stage that we can screenshare specific bundle pages with judges and witnesses to prevent them scrolling through enormous documents; that we can direct the witness to relevant paragraphs on an enormous document with a flick of the wrist. Whether through technology inside or outside of the courtroom, it seems an inevitability at this points.
We aren’t there yet, but paperless working may well become the norm and the days of lugging lever arches aboard public transport might well become a thing of the past (if it isn’t largely that already). The use of telephone hearings has only improved this, with more and more of us sensibly choosing to have the PDF bundle open in front of us on a computer screen during the hearing rather than printing all of the papers from home.
It also highlights the importance and significance of digital security; again an issue which has already been more present. It is easier to protect a physical bundle of documents but COVID-19 will assuredly make us even more away of the importance of digital security if more and more work is conducted digitally.
So there we are; nearly two months into lockdown and a few thoughts on the direction we’re going in. Some of these developments could be regarded as obvious or inevitable. What we can be sure of is that things are not going to be as normal as before after the crisis abates. Whether by fortune or design, the family legal system has learnt new ways of working and operating. This ‘experimental’ phases won’t simply go away afterwards; an entire generation of lawyers and judges have been forced to test new systems and learn from their implementation. That can only be a good thing for the courts.
Undoubtedly, the ‘digital’ and ‘telephonic’ family courts will still exist when things go back to ‘normal.’ Their maturation during this period should encourage the courts to take these lessons learnt into greater consideration than ever before.