Everybody is adapting. We’ve been remote working now for eight months. Putting to one side for a moment the recent surge in COVID-19 cases, practices have been trying to return to ‘normal’ with courts running hybrid and full-attended hearings. But what if the courts system can be better than before lockdown for everyone? (I write from the perspective of a family and civil barrister. This article does not speak for potential changes in the criminal justice system, which faces unique challenges with jury trials.)
Firstly, what does ‘better’ mean? It seems sensible that this definition is likely to include: a more efficient courts and tribunals service, more effective administration of justice, improved wellbeing, increased capacity, a more cost-effective operation, but all subject to the caveat that the administration of justice is not compromised.
Every barrister will have their own experience of how COVID-19 has affected them. Many have experienced a drop-off in work and income, coupled with additional responsibilities of home-schooling and shielding. However, the thrust of this article is to look more towards a post-COVID world (if and when we get there) where the diet of work has returned to near enough pre-lockdown levels.
Remote working pre-, during and post-COVID
Think of remote working in three levels:
- Level 1 is where HM Courts and Tribunals Service (HMCTS) was before the pandemic. It had the ability to provide a remote service, but this was the exception, not the norm. Many were probably unaware that such an option was feasible and available; if a party couldn’t attend for whatever reason, an adjournment would usually follow.
- Level 2 is where we are now. HMCTS has, mostly successfully, recreated the physical court experience as best as it can online. BT Meet Me/Skype for Business/Microsoft Teams even Zoom were first port-of-calls before the Cloud Video Platform (CVP) started to take over. Experiences have been mixed; inconsistency is consistent at the moment with most CVP hearings. This could well be the high-water mark of the remote experience.
- Level 3 is where HMCTS should go, for several reasons. This level is where a company or public body begins to adapt and take advantage of the medium of remote working. At Level 3, HMCTS can improve the experience for clients, court users and the administration of justice, even compared to physical in-person hearings, to the point where ‘connection issues’ are as rare as somebody being so late to court it delays the start of the hearing.
A Level 3 example that springs to mind is the implantation on CVP of ‘rooms’; one for the hearing with the judge, one to speak with clients, and one for advocate discussions, with the option of switching seamlessly between rooms while remaining ‘in the hearing’. This increases usability of the remote system, and is more efficient than walking around trying to find a conference room in a court building. We have all experienced the hassle of logging off a call to take instructions, or the pains of organising a pre-hearing conversation via email/Teams with other advocates. What if these rooms were open the hour before the hearing, so that all parties and clients could log in, send messages, and the court clerk knows who is likely to be present? Connectivity issues could be rectified in this hour, and pre-hearing negotiation undertaken more efficiently. The current practice of logging in five minutes before a hearing will nearly always cause a delay in beginning on time. We wouldn’t plan to turn up to court five minutes before a hearing before lockdown, so why are we doing it for remote hearings?
Another example is a sort of CVP/Google Drive where the draft order in a family case can exist before all parties on screen, is edited in the hearing, approved and sealed. This would save not only the time of drafting an order, which in turn saves the Legal Aid Agency an hour’s pay for each advocate, but avoids delay in obtaining disclosure when third parties request the sealed order, which may take weeks to arrive from court. It would also dramatically reduce the work a barrister must do following a hearing. The same principle would apply to costs schedules in CCMCs in the civil court and particulars of claim in the employment tribunal.
Adapting to the new medium: a unifying strategy
A common thread that has emerged in discussions with fellow practitioners is the huge increase in emails being sent to counsel. No doubt this is due to both the inability for face-to-face discussions in court, and many thinking that because we are sitting in front of a laptop screen and not actually ‘in court’, we are more available to be contacted by email. Does anyone really expect this to change if we started returning to the courtroom? Like the proposition of extended hours, if a practice is implemented it becomes extremely difficult to remove it.
The biggest adaptation has to come in the form of dedicated Practice Direction in both the Civil and Family Procedure Rules. Every court is working with different methods and practices. This has to stop. There needs to be a uniformity of approach. I would hazard a guess that a large part of the dissatisfaction with remote working is simply because of the absence of such a unifying document. A clear Practice Direction setting out each detail, down to the legal requirement to test the internet connections of clients before a hearing, would significantly streamline and clarify matters for all.
Of course, many people want to go back to how things were, and remote hearings in their current iteration can be hugely frustrating, but we’re simply not giving it our best shot. It’s not that we are not trying our best, it’s that we’re too busy thinking about replicating everything we did in person, and not thinking about the opportunities that the medium has brought us.
Why a remote system could be better for all
It’s simply not true to say that the administration of justice cannot be done remotely. Our profession is not a Level 0 type of industry such as construction, emergency services or farming. Before writing, I started by thinking about the arguments against a predominantly remote-based system. Other than those already discussed, the following came to mind:
- connection issues cause delay in joining and starting hearings;
- difficult to negotiate with other representatives;
- difficult to take instructions from clients in the hearing itself;
- requires all parties to have a good WiFi connection – a challenge in rural areas;
- clients would prefer a literal ‘day in court’.
I wouldn’t say any of these difficulties are insurmountable with the right technology and investment. The first three points above are answered somewhat by the ‘rooms’ addition on CVP. The next two points by investment at both the user and public body end, and the last can be answered by solving the previous points.
I also accept that many will have struggled with the deterioration of the boundary between their personal and professional lives – work has very much come into the home. But I would caution against a snap judgement. We will adapt, we will create new habits, new techniques to separate the personal and professional, and ultimately, these will be beneficial for us in the long term.
The jury is still out as to whether remote working makes for more productive workers; some studies agree, others do not. However, if we look at the hard realities of what a remote practice means for both representatives and the judiciary it is clear there can be huge advantages:
1. Less commuting: A remote system allows representatives and judiciary significantly more time to prepare cases. More time to prepare = better quality of representation.
2. Cost savings: The Bar in commuting costs; the government on legal aid cases where travel to court is a claimable expense.
3. Increased work opportunities: A remote world discourages tribalism at local Bars and increases exposure to briefs across the jurisdiction. For those in the part-time judiciary, it would involve sitting without the need for huge expense and travel to far-flung courts.
4. Improved experience for clients: Especially in divorce and private children cases, if clients did not have to travel to the alien environment of court and see their ex-partner but instead gave instructions from familiar/safe surroundings, this can give a greater feeling of comfort to a litigant, and greater cooperation between parties. If clients are able to present their best selves on the day of their hearing, they are more likely to get the best outcome, and feel that they’ve had their ‘day in court’.
5. Increased retention of practitioners: The Bar is seeing a significant number of practitioners, mostly women, either reduce their working hours or drop out entirely due to the added responsibility of childcare. Of course, a remote world is never going to completely change this reality. But just consider that if a Cardiff-based practitioner is in court in Swansea at 2:00pm, with the hearing finishing at 3:00pm, that practitioner has to organise childcare for the school run and maybe longer. In a remote world, that practitioner can make the school run themselves and return to drafting orders/preparing documents at a time convenient to them. Admittedly not all hearings are this convenient for childcare. A remote system moves the needle down the right path for retention of our practitioners.
6. Increased quality of advocacy: Which advocate is going to deliver the better standard of advocacy – one who is standing up before a court, a single laptop in hand or a bundle of papers, with crib notes or having committed to memory the content of their speech? Or one who is sitting down with access to several different devices, able to close and draw up various tabs during their cross-examination or submissions? The point holds strong in a conference setting too.
7. Wellbeing: It’s no surprise that when you add all these previous points together you find an increase in mental wellbeing; this perhaps one of the biggest impacts. From the informal discussions I have had with practitioners and the judiciary the message is simple: ‘When it [remote hearings] works, it is brilliant.’ Burnout, anxiety, stress and work pressures are massive challenges for every practitioner; remote working has the potential to ease these ills. In a remote world, people are given the agency to tailor their work and life habits around their ability to work.
Extending this last point, some may find a small habit such as having a cup of tea/lighting a candle/meditation/a quick walk round the block is a good way to prepare or stay refreshed between hearings. Could any of these, with potentially huge effects on productivity and wellbeing, be done in court centres? Of course they could, but what practitioner is going to do press ups or meditate outside the door of court? In a remote system, you are able to do whatever it is you need to make sure you – at worse – get through the day and – at best – are refreshed mentally to give the best for your client. Each of these small building blocks builds a significantly higher tower of wellbeing to that cultivated pre-lockdown. Greater wellbeing of Bar and judiciary can only positively affect the quality of advocacy, and ultimately, the quality of HMCTS.
How to achieve real systemic progress
There will never be a time that in-person hearings are not crucial to the proper administration of justice. Many clients will be unrepresented and do not have the means to afford a laptop and webcam. Many will have specific needs that require an in-person hearing. Clients, or barristers, could elect hearing-in-person. But, in my view, these cases should be the minority.
It is a difficult task to try to draw out the threads of progress and seeds of real systemic improvement from a system that has been catapulted into a technological world it was not ready for. Even since March there have been huge improvements in the remote experience which is testament to HMCTS’ capacity for innovation; and the only way is up. Given time, investment, uniformity of procedure, changes to working habits and most crucially an approach that works with the medium rather than tries to ‘hold ground’, this can lead to a better system for all.
Levels of autonomy: This article is based on the ideas of Matt Mullenweg, founder of WordPress, who has outlined ‘Distributed Work’s Five Levels of Autonomy’ . For the purposes of this article the first three are useful.
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