Zooming in on a new nirvana

June 15, 2020

By Paul Kirtley and James Kinsey

You will remember the widely reported story at the start of the UK Lockdown when fears abounded about the shortage of ICU ventilators. Consultant Anaesthetist Dr Rhys Thomas developed within just 3 days a Covid Emergency Ventilator now approved by regulators to assist patients fighting the respiratory virus to breath whilst clearing a room of viral particles. To combat the reliance on ICU ventilators Dr Thomas’s device was engineered to be used on patients before they entered ICU and ultimately to prevent the need in the majority of cases for the use of ICU ventilators. The device was not a replacement of ICU ventilators. It was a stop gap designed to help prevent the wholesale collapse of the health care system struggling through a lack of ventilators to keep patients alive.

Since the implementation of the Lockdown in March the justice system has relied upon and largely robustly enforced the use of remote technology to keep the heart of justice beating. Remote video conferences and hearings have ensured the continued administration of justice and more generally communication between professional and lay clients. The UK and the rest of the world are now tiptoeing out of confinement and the prospect of face to face meetings and court hearings are once again slowly becoming feasible.

The question on many people’s lips posed by the easing of the lockdown is whether the innovations in the legal sector during lockdown were a stop-gap to keep the body of justice breathing or whether the use of remote technology is now a permanent feature of the justice system? Absent a crystal ball it is a difficult question to answer. My concern is not to answer the ‘will’ question but to put pressure on the ‘should’.

Rightly, Professor Richard Susskind, the renowned evangelist of the use of technology in the legal sector, implored in March that ‘we have no choice’ in accelerating the use of remote hearings by judges upon the closure of physical courts. Necessity breeds innovation and it was clear as courts were forced to close that, in the words of the Lord Chief Justice, courts had an ‘obligation’ to continue to operate using previously unused and untested remote technology where logistically possible, safe and in the interests of justice to do so. There was an imperative to ensure the continued access to justice, to prevent delays and backlogs, and more broadly to prevent the wholesale collapse of the justice system. As the lockdown slowly eases the challenge now is to consider how as practitioners these new challenges will impact upon the future of the legal system.

There are compelling arguments in support of the continued use of remote technology as a medium for court hearings, ADR, and client conferences. If teething issues of poor internet connections, ignorance of the user functions within software and so forth can be overcome what is the difference between a virtual hearing/JSM/conference and the same conducted in the flesh? Pressures on court resources, time and costs, will reduce and access to justice increase to a modern public with the internet at their fingertips. Exhausted lawyers’ eyes light up at the thought of saved expenditure and time from working from home instead of travelling across the country to far off courts.

However attractive the above may be, it is arguable that the premise is based on a narrow and misleading view of communication: that it is really only about the exchange of information. The crux of the arguments in support of Skype for Business hearings and Zoom JSMs and conferences is that once the tech issues are ironed out there is no qualitive difference between an exchange of information in a court room / conference room to the same individuals communicating over a video link. The evidence in support derives from cases narrowly selected involving submission-based advocacy where communication between lawyers is engaged by the exchange of information.

However, communication is about far more than relaying words from a mouth to an ear. Speech is a medium of a relationship within a physical space. What might be considered meaningless chit-chat serves a social function of bonding individuals together. The essence of communication is the establishment of trust and understanding. The exchange of information is but one element of that communication. It is said we come to understand one another through the subtleties of tone, eye contact, body language and the sharing of vulnerabilities that occur when we are bodily present. It is why businesspeople fly across the globe to sign off a deal between two parties. Arguably it is the presence of individuals in the same space that is integral to communication if we are to properly interpret one another and have confidence in what we achieve whilst working in the legal sector.

Examples from a lay client, counsel and judicial perspective illustrate the more holistic view of communication.

I recently conducted a JSM in a Fatal Accidents clinical negligence matter on behalf of a deceased Claimant 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 which might easily achieved over video link, but is judged by what the communicatee interprets and understands, which is arguably more successfully achieved through communication in person.

What of 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 a witness’s evidence. It is questionable whether this assessment can be achieved from review of a postage stamp image amongst many on a computer screen. Think about the assessment we make of each other in general society. Homo-sapiens unlike other primates evolved eyes with clearly distinguishable whites as opposed to a dark pigmented gaze. The advantage for humans is that humans know from the flicker of a gaze what another person is looking at, what object or indeed person they are interested in within a room, and even to a large degree how they feel about their interlocutor and the situation they are in. The eyes are the mirror to the soul which enabled early humans to cooperate and develop instant understanding as to whether their interlocutor was friend or foe.

In court the ability to bear into the whites of a witness 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 a postage stamp image 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.

Like Dr Thomas’s ventilator developed to cope with the Covid crises there is a strong argument that the use of remote technology in court rooms, to conduct ADR and communicate with clients is a necessary stop-gap to provide breathing room and prevent a wholesale collapse of a 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.

However 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. The quality of justice is an ever elusive pursuit. Perhaps that challenge is even now more nuanced.