IPads and laptops populate robing rooms up and down the country (assuming users have astutely avoided confiscation by overzealous HMCTS staff who think they might be weaponised). The Digital Case System is up and (mostly) running and in daily use in the Crown court. New generations of barristers are far more comfortable with navigating legal search engines than dust ridden volumes of the law reports.
Roll back the years to 1985 when the Bar set up its first committee on IT. In a valedictory address to Sir Henry Brooke on his retirement as Vice President of the Court of Appeal in 1996, the Lord Chief Justice reflected: ‘[The Bar] wrote to all chambers asking whether they would like help with the practical application of IT. Fifty per cent did not reply. Half of those who did stated that they could not imagine any way in which IT could help them…’
The Bar is now a world away from this picture of reluctance, with no small part having been played by the late and great Sir Henry. But of course, technology is not standing still – and even the rarefied air of the Inns of Court cannot claim to be immune to its spread. My theme as Chair of the Young Barristers’ Committee this year is the ‘Bar of the Future’, and our Annual Workshop, ‘The 21st Century Advocate’, sought to explore the technological side of that in more depth, in terms of how it could be used by barristers, but also some of the broader concerns that it raises if deployed in too uncritical a manner.
Going to market and a bigger case management role
LawTech, or LegalTech, depending on who you speak to, is fast becoming a staple part of legal conferences, and an increasing influence on the daily lives of lawyers. However, for barristers, its impact has not yet been felt particularly strongly. That is not to say, as might well have been said of Sir Henry’s contemporaries in 1985, that barristers are not ready to adapt and change in their working practices. One explanation, proffered in an article that I read quite recently, is simply that a significant proportion of LawTech ideas are just not very good yet, either in concept or in delivery. We work in a high stakes environment – and poor products are a risk that cannot be tolerated. Another is that, as far as litigation is concerned, it is not as clear which types of technology would readily assist, and it is even less clear on the counsel side of things.
Against that background, the LawTech which is of interest to barristers is perhaps restricted to three main areas at present: marketing and business development; knowledge management; and case presentation. At our workshop, we had live demonstrations from Juriosity, Intelllex and Opus2, who are active in each of these respective fields, and are pushing to develop exciting new capabilities which benefit barristers. There is also an increasing tendency in large scale, complex cases to deploy technology-assisted review to sift huge amounts of data for disclosable material, in fields as diverse as regulatory crime, commercial, and high value divorce. If you are willing to think a bit differently, this represents a significant opportunity for junior counsel to play a more active case management role, either alone or in conjunction with solicitors.
Time to switch on: engaging with court reform
What then of the broader concerns? Sir Henry’s example shows us that we should not be surprised that the senior judiciary is interested in how technology can be harnessed to improve the experience in and around court. Quite how far that interest should be taken by judges and by the Ministry of Justice is a far more contestable issue – but an idea of some senior judicial thinking can be gleaned from three important recent speeches, which repay careful reading. The first, given by Sir Ernest Ryder, the Senior President of Tribunals, argues persuasively that whilst judges should take a role in reform, judge-led reform is not a desirable model for the future, but rather, a wider collaboration between different stakeholders is preferable. The second, given by Sir Geoffrey Vos, the Chancellor of the High Court, involves a wide ranging discussion of medium-term changes that he expects to see for both transactional and dispute resolution lawyers in view of advances in technology. The third, from Sir James Munby, the outgoing President of the Family Division, touches more on the present detail of the HMCTS Court Reform programme and where we can expect it may lead.
It is in this field that I think the Bar needs to continue to spend its collective intellectual energy – not in relation to our individual practices, but about questions of system design. The Court Reform programme is unprecedented in terms of scale and the time within which it is expected to be delivered. Not all of it is controversial – for example, the digitisation of certain paper practices is long overdue. However, we must confront the possibility that the increasing power of technology is not always to be embraced unconditionally. The potential use of ‘virtual’ or ‘online’ hearings, for example, raise far reaching questions about the interplay between maintaining a fair trial, access to justice, and open justice. The impact of such changes need to be properly researched before they become potentially irreversible, and the main driver cannot be allowed to become cost.
Disappointingly, however, the National Audit Office’s recent report on the delivery of the Court Reform programme felt it necessary to conclude that ‘HMCTS should provide greater transparency of its objectives and progress and be clear how it is adapting plans in response to risks’ and unfortunately, the same might be said for the judiciary’s closed consultation, Judicial Ways of Working 2022. If we can identify a single, general point about Sir Henry Brooke’s life, it is that it appears to have been one characterised by cooperation on nearly every conceivable kind of project. Rather than to offer either unswerving opposition to change or to present ‘done deals’, it is with a cooperative but critical attitude that the Bar, Bench and HMCTS need to approach the technological opportunities and challenges of the 21st century.
Contributor Rick Hoyle is the Chair of the Young Barristers Committee (2018) @barrickster
Some practical pointers for life at the modern Bar
How can you market yourself more effectively? Can you make use of well-established websites, such as LinkedIn, to raise your profile by commenting on a case or hot legal topic? Would it be more effective if you also tried an industry specific platform like Juriosity? What about becoming Direct Access qualified?
Consider innovative approaches to working
Can you improve your productivity? Companies such as Intelllex are offering the ability to search legal materials and store the results in a much more structured way for when you need them again, archiving them amongst your own work product with smart tags. What about case management? Can you go paperless to save cost and the effort of dragging around endless bundles and books on court procedure? Might sharing an online platform or workspace like Opus2’s Magnum with your solicitors reduce confusion when locating filed and draft documents and presenting the case?
Be open minded
A barrister’s role within a case today is often more fluid than it was in the past. Being ready to take on different types of tasks or integrate into a larger team make you easier to work with and help you to stand out.
If you are willing to think a bit differently, [LegalTech] represents a significant opportunity for junior counsel to play a more active case management role, either alone or in conjunction with solicitors