Tue, 05 Jan 2021
So, the New Year does not bring about a new (or is it the old?) way of working. In fact, it looks like we will be doubling down on remote hearings generally and trials specifically. So here are 12 Steps To Better* Remote Trials based on my experiences:
- Consider whether a remote hearing is appropriate for any particular trial. Some judges consider issues of fundamental dishonesty entirely appropriate to determine remotely. Others refuse to do so. Form your reasoned view as to what is appropriate and discuss the same with the other side.
- Think creatively about problems. A hybrid hearing, when in-person attendance is necessary for some participants, may allow it to proceed when others cannot or should not attend in person. Ask or apply to the court in good time if this is the case.
- Check with your client/witness how they would propose to join any remote hearing. Mobile telephones will do at a pinch but should be avoided. A tablet is good, a laptop better and a desktop best.
- Make sure they have an internet connection (that will not bankrupt them with data charges), a working webcam and working microphone.
- Check they have a separate space that is quiet and will allow them to be alone whilst giving their evidence.
- Check how they will want their bundle. Some will be able to deal with it in an e-format, but others will either prefer it in hardcopy or need it to be a hardcopy if they do not have a separate device to access an e-bundle. If they are having an e-bundle, using a mobile telephone for that purpose should also be avoided.
- If the bundle is to be in hardcopy, send it in good time by a secure and reliable method. If in e-format, send it in good time by a secure and reliable method.
- Beware of the e-bundle broken down into many files. Giving evidence is stressful enough for most witnesses without having to worry about what file they need to have open and what bundle pagination/different electronic page number to look at. Send large bundles by a document sharing platform. If you can get the bundle pagination and e-bundle pagination to match, do so (consider adding late ‘inserts’ to the end of the e-bundle in the form of p128A etc)
- If need be, test that your client’s technology works and that they can work it themselves. Having a judge cheerfully told by your witness that they “received the e-bundle, thank-you very much, but I don’t have a clue as to how to move through it” is not a great start to a trial.
- Check what individual directions the particular court has ordered. Some have specific time rules on when contact details need to be received, others on how bundles are to be filed.
- Consider how clients are to communicate with legal representatives during the hearing (save for when they are giving evidence, obviously!) There is always that answer in cross-examination where everyone benefits from the client giving instructions on it immediately.
- If an interpreter is required, consider how that is going to work. One work around I have experienced was on CVP, which has a ‘chat function’ where the translator was able to type translations whilst everyone else was talking, but not every platform provides that/not every translator can type quickly.
*Disclaimer, something can still go surprisingly wrong. From the cat breaking into the study during the 10 minutes you are speaking but ignoring you for the rest of the day, through your device deciding that now is the time to install a major update it had not warned you about to the unfathomable dropping out of your internet connection.
Alexander Mellis
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