What is the connection between eDiscovery / eDisclosure (the main subject of this blog) and remote hearings? I raise the question as a message from the Lord Chief Justice, Lord Burnett of Maldon, appears to imply that the courts will soon revert to in-person hearings. If that is what he means (and it is not entirely clear what he means) then courts and those who appear in them are about to take a step backwards which wastes a year of hard-won experience, to say nothing of substantial investment in equipment and training. Lockdown may have been the reason why remote attendance became permissible but it was long overdue as a common-sense way of saving the travelling and waiting time of advocates, many of whom are paid from the public purse.

The only real connection with eDisclosure is that the adoption of technology for handling documents in litigation was a long time coming, remedied an obvious waste of time and resources, got its boost from a crisis (in that case the rapid growth of document populations), expected new tricks from lawyers, and required the encouragement of rule-makers and judges who were not necessarily up to speed with modern methods.

If that link seems tenuous, well so what?  I have the luxury of writing about whatever interests me and which may similarly interest a legal (and largely litigation-focussed) audience.

The old ways and the the reaction to lockdown

I served my time as a young solicitor attending procedural hearings which had little or no scope for argument – the parties were usually more or less agreed, and disagreements generally involved a small amount of argument and a swift (and often apparently arbitrary) decision. My hearings were almost always in the Royal Courts of Justice, and we would saunter down through Lincoln’s Inn, sit in a corridor for a bit, and take our turn before the Master or whoever before returning to put a couple of hours on the time sheet. We could have done it on the phone in minutes, but we got paid for it anyway.

It is very different for, say, a junior barrister, required to attend at a distant court at a fixed time. In addition to the travelling time, there is a travel cost. There may be many hearings listed for that time, so waiting time is added to the rest. If the work is publicly funded, there is a fixed, and very small, fee for the attendance. The hearing is often either ineffective or concerns something which could easily have been dealt with by phone or, these days, by video link (I say “often” not “always” – the point here is to identify those hearings to which nothing useful is added by personal attendance).

There is no need to recite it all, but there are many reasons for this stupid waste of time and money, including brutal cost-cutting at the Ministry of Justice, the MoJ’s unwillingness or inability to consider the role of technology or to implement it properly, and judges whose self-importance or adherence to tradition blinds them to the difficulties of others.

We seemed stuck with this until, exactly a year ago, pandemic struck, making it impossible to crowd people on to trains and into courts ill-suited to social distancing, and mixing people – lawyers, judges, court staff, prisoners and prison staff, and witnesses – together in confined and often badly-ventilated buildings.

Many hasty changes and compromises were made, varying between courts and types of cases, to keep things creaking along. The main thing was that many courts, lawyers and other participants had to adapt quickly to working remotely. The experience varied – a senior commercial barrister with a hearing in the Rolls Building had a better time of it than a junior barrister in underfunded regional courts, which themselves varied in ability and willingness to accommodate the changes, depending on the physical layout, the efforts of the staff, the quality of the technology and, not least, the understanding of some (but not all) judges.

Some brought stories of helpful, well-organised courts where everything worked; others were less impressed by the people and the technology which they encountered, or just didn’t take to it.

Direction from above – up to a point

The Lord Chief Justice, Lord Burnett, made it clear that facilitating remote attendance of all or some of those involved in hearings should be the default position in all jurisdictions – here is his message of 5 January 2021 as we entered the third lockdown. That default, he said applied “whether backed by regulations or not.”

By this stage, many courts and lawyers had successfully adopted remote working – they had learnt new tricks, bought new equipment, and were willing to trade the occasional glitch in exchange for the time and money saved by remote hearings. Not everyone, however, has a spare room and the funds to buy new monitors and webcams. Some people thrived on the time released from travelling and waiting, while others need company and human interaction. Not every case is suitable for remote hearings. Not all the technology worked. Accounts on Twitter varied from joyful enthusiasm to deep scepticism borne of bad experiences.

Nevertheless, lockdown gave an opportunity to try things which would not otherwise have been attempted. Personal inclination, types of work and court, the varying quality of different video systems, all got a trial run. We have extreme views as a result, but they are at least views borne of experience. We were getting somewhere.

Then, this week, the LCJ seemed to put the brakes on it all – I say “seemed” because his message and its intent are far from clear. It is not that it says anything wrong – recovery is coming, and “it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice [to] maximise the throughput of work”. All sensible, but how wretchedly uninspired and uninspiring – this could have been the moment to urge judges and parties to think through the need for physical attendance for the long term, and to give messages of encouragement.

The LCJ could have seized the moment to tackle historic problems of wasted time and costs. He could have stood up for the positive benefits for those with childcare obligations, and for the quality of life of those who must be involved (in whatever capacity) in the courts. Instead, he just urges everyone to get back to normal as soon as it becomes safe to do so. It is dull, safe and (sorry m’Lud) unimaginative stuff.

Meanwhile, we learn from an article in the Law Gazette of 15 March that HM Courts and Tribunals Service has commissioned no research into “the impact on justice outcomes of video hearings or links”

To see a contrasting approach, look at speeches made by the Master of the Rolls, Sir Geoffrey Vos. One pre-dates his appointment and goes back to June 2018 when he spoke on how the adoption of new technology can be accelerated to improve the efficiency of the justice system. More recently, in January 2021, he gave a speech with the title Reliable data and technology: the direction of travel for civil justice.

I think Sir Geoffrey’s response to the lifting of lockdown would be one of learning lessons, building on experience, and moving forward. Lord Burnett appears to want us all to subside into former ways. He says “we have seen that technology has many advantages but, in some circumstances, it can also have the effect of slowing down work.” but shows no interest, in public at least, in exploring the facts. What is improved by technology? What is not? How can we pick the best, discard the rest and move forwards with all this experience and investment behind us?

Two US examples

I will end with two examples from the US. The first is the lawyer who found it necessary to explain to the court that no, he was not a cat, despite an on-screen appearance which strongly suggested that he was. He gets more sympathy from me than many have expressed, but he gave us a good (and harmless) example of the merits of understanding the technology you use.

The other is the domestic violence hearing during which an alert prosecutor deduced that the male defendant was in the same apartment as the complainant while she was giving evidence. The hearing was being live-streamed on Youtube, consistent with the over-riding idea that justice must be seen to be done. If you need persuading that there are some types of hearing which must take place in person, this was compelling.

Move ahead rather than subside into the old normal

The message should be that we must identify, both in principle and case by case, whether a matter is or is not appropriate for remote hearing. Let’s clear the courts of those which do not need live attendance to make space (both physically and in the lists) for those which do. Let’s free up the time of those who should not have to travel so that it becomes possible, and not just in a barrister’s clerk’s dreams, to attend courts in Newport, Wales and Newport, Isle of Wight on the same day.

Whatever we do, let’s not just subside unthinkingly into the old normal.

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