Sarah Walker and Egishe Dzhazoyan, partners at King & Spalding.

The COVID-19 outbreak has disrupted practically every walk of life around the globe. The legal sector is no different and the last few weeks has seen the "new normal" for lawyers – like for other sectors – of mass remote working, webchats and social distancing. The English courts have also seen one of the biggest changes in process in years. The Coronavirus Act 2020, emergency legislation passed on 25 March 2020, allowed for courts to broadcast virtual hearings to the public. 

The first ever virtual case in the High Court – National Bank of Kazakhstan & the Republic of Kazakhstan v The Bank of New York Mellon, Anatolie Stati and Ors – commenced the very next day. It was also the first trial before the English courts to ever be livestreamed on YouTube. 

Modern technology can, of course, provide some amazing efficiencies in the litigation process. Time, resources and processes can be made more efficient yet handling a dispute in a virtual courtroom also provides for some unique considerations and challenges.

Courtroom to front room

During the uncertain time of the COVID-19 lock-down, remote hearings are being conducted from the Judge and counsel's home work environment, which can affect the formality of the Administration of Justice. As the environment of the virtual hearing is key, conducting a trial remotely impacts some of the procedures long-associated with the English courts. 

While this is likely to change when remote hearings are streamed from counsel's chambers, and the judge can sit in court, a court hearing has its conventions, which are drastically different to the conventions of a video conference – the balancing of hundreds of years of traditional court conventions via the medium of modern-day video conference, will take time. No-one expects to see their child walk into the "court room", much easier to occur during a video call than a traditional trial, but these examples are all part and parcel of the new challenges for an advocate navigating a remote trial. 

Dealing with the tech 

Deploying adequate IT solutions, including hardware, software and infrastructure, is an inevitable result of the shift to digital hearings. Anyone who has been on a video call will know a time lag, even by a second or two, background noise, bandwidth capacity and poor video/audio quality can not only interrupt the natural flow of human interaction but make even a simple conversation taxing. This is compounded if the V/C involves a complex commercial case lasting for days. 

Frustrations can understandably occur when transcripts are not operating at optimal speed, background issues prevent clear recognition of submissions and the inability to always detect who is speaking at a given time, or even the risk of not being on mute when conducting private or confidential discussions.

There are legal technology specialists that provide some helpful solutions to document shuffling by providing an online bundle that appears simultaneously across the screens of all parties involved, helping to address the issue of ensuring judges are up to speed with the bundles. 

Screen time

Adapting to operating "off screen" in a court room presents both challenges and opportunities. As to challenges, seeing the Judge, his or her facial expressions or "following his or her pen" can be harder on a screen. Likewise, the ability to interpret the body language of a witness can become harder and possibly even inconsequential. For non-English speaking witnesses, the pace required in cross-examination is upheld in normal court proceedings by using seamless translation; in remote hearings translation operates sequentially, which causes unnecessary delays compromising both the responses received and the success of cross-examination.  

Confidential discussions between advocates and lawyers can also be tricky, placing a greater bearing on instinct for the advocate. Likewise, non-verbal communications between solicitors and advocates – such as subtle nods of support or gestures to push a line of questioning – that act as guides quickly disappear. 

For advocates, of course, sitting at a screen for hours on end rather than being in an actual court is a considerably different proposition. On a basic level, the fundamental role of an advocate is to present the case as convincingly as possible. This often includes creating an energy in the courtroom; standing up to address someone, moving around the room, gestures and pauses. An advocate sat at a desk interacting with someone (often indirectly) via a webcam, may lose some of its usual force.

As is always the way, navigating emergency situations also offers up new and potentially significant benefits for teams of solicitors who would usually be passing indiscrete notes around a courtroom. They can now utilise WhatsApp; a real time and encrypted form of communication. 

Other bugs in the system

Technology presents other issues beyond the legal process itself, especially if an entire case is broadcast online. A client's concerns over confidentiality, cybercrime and IP rights, for instance, could be exacerbated by the fact certain information – which would have been limited to the people within the court itself – could be broadcast around the world, recorded and then fully accessible from then on. 

Cases could also receive more media scrutiny. Ordinarily, only those dedicated court reporters, which have been decreasing in numbers over the years, who go along to the court and listen to the proceedings usually reported on the details. An online stream, however, opens the door to any journalist, blogger, vlogger or even troll to write about proceedings.

Virtual cases have pros and cons but we are still in the advent of their potential. As more cases come to the virtual courts and new conventions are established, perhaps a mixture of both physical and online aspects in cases can provide for the best of both worlds. Courts and the legal profession more generally have perhaps lagged behind the pace of the rapid technological change experienced in other sectors in recent years – the very serious impact of COVID-19 on every sector has required each of us to work differently and caused each of us to adapt – in a matter of weeks – to the technology which supports our new normal. Medium to longer term, this could present the courts with huge benefits. 

As with most IT solutions, however, it takes users adopting and adapting to the technological advancements before all runs smoothly. This is the new normal – ignore our new landscape at your peril.

Sarah Walker and Egishe Dzhazoyan are partners in the London office of King & Spalding. They are members of the legal teams, respectively, conducting proceedings in the London Commercial Court in a virtual application for emergency injunctive relief and a virtual trial (National Bank of Kazakhstan & the Republic of Kazakhstan v The Bank of New York Mellon, Anatolie Stati and Ors).