Remote hearings are here to stay, but lawyers should guard against virtual law becoming the new normal says Paul Kirtley

August 7, 2020

A leading barrister and mediator who has further developed his successful offshore practice with a number of remote mediations during the lockdown period says the legal profession should guard against virtual law becoming the new normal.

In recent weeks, Paul Kirtley from Exchange Chambers has successfully mediated a high value professional negligence case with parties from Austria, Switzerland, the United Kingdom and the Isle of Man taking part remotely. He has also successfully mediated a high value personal injury claim with eight parties from around the UK and the Isle of Man participating remotely. Both mediations were facilitated by Exchange Chambers’ in-house IT department, which is well-versed in delivering remote hearings across all technology platforms.

Despite the obvious advantages, and current necessity, of remote hearings, Paul Kirtley, an accredited Civil and Commercial and Workplace Mediator is advising against a one-size-fits-all, technology-led approach in the future.

“Since lockdown began the justice system has relied upon and largely robustly enforced the use of remote technology to keep its heart beating,” he said.

“Acting as a mediator, my experience has been very positive, instructed by firms in the Isle of Man in high-value, complex disputes with parties from all over Europe taking part remotely.

“Even when social distancing requirements have gone, it is inevitable that we will make greater use of technology to deliver remote hearings.  But a one-size-fits-all, technology-led approach does not deliver in all circumstances.”

Continued Paul, who also has a sizeable personal injury, clinical negligence, employment and regulatory practice:

“The crux of the arguments in support of the virtual approach is that once the tech issues are ironed out there is no qualitive difference between an exchange of information in a court room or conference room to the same individuals communicating over a video link. This is not my experience, however.

“Prior to lockdown, I conducted a JSM in a Fatal Accidents clinical negligence matter on behalf of the widow of a patient who had sadly died from internal bleeding within hospital. The JSM involved negotiating the value in monetary terms of the life of the deceased and communicating that to the deceased’s long-term partner. Quite simply without the physical presence and trust afforded by the one to one communication the JSM could not have achieved a satisfactory outcome over the sterile environment of a Zoom conference.

“In another fiercely contested case involving personal injuries arising from a motorcycle accident the rapport developed between counsel over several meetings including a CCMC led to the defence counsel developing a different view as to the liability position of the defendant which had not been achieved in the previous years of litigation. The ability to develop a relationship and engage in the issues created an opportunity for an otherwise intractable case to resolve within days of the CCMC. The quality of communication is judged not by what the communicator intends, but is judged by what the communicatee interprets and understands, which is arguably more successfully achieved through communication in person.”

Commenting on the courtroom position, Paul added:

“Then there is the assessment of witness evidence under examination. A witness’s communication, their demeanour, how they answer questions, how others respond within a court room must all be assessed in reaching a conclusion as to the quality, credibility and reliability of their evidence. It is questionable whether this assessment can be achieved from review of a small image amongst many on a screen.

“In court the ability to see into the whites of a witness’s eyes to assess their character, motivations and reliability of their evidence is deeply affected by the change from physical presence to the medium of video. Equally, it’s hard to see how appearing as an image on a screen will imbue a party with confidence that they have had their day in court or their case heard at an ADR meeting. The physical presence of lawyers, judges and witnesses is integral to the public’s perception that justice is being done.”

He concluded:

“The widespread use of remote technology in court rooms, to conduct ADR and communicate with clients is currently necessary to prevent a wholesale collapse of the system. Whilst there are benefits to the increased use in technology to the public and lawyers, we have a choice about how best to represent clients and administer justice in the months and years ahead. The choice might be determined by a question of considering whether the use of remote technology is proportionate to the nature of the case and parties involved.

“In making that assessment as the lockdown eases and we are tempted to take the less time consuming and perhaps cheaper options of using technology, we might bear in mind that the effective representation of clients is our byword and such may be better achieved through an understanding that communication is not a mere relaying of information.”