How COVID 19 will change the Civil Litigation landscapePosted: 25 May 2021
By Jeremy Berg of Spencer West LLP and James Stuart, head of commercial of Lamb Chambers.
In many parts of the economy, people are wondering how permanently the effects of the COVID 19 pandemic will affect their working lives. In some areas, like the theatre, sport, hospitality and holiday travel, it will surely only be a matter of time before most things return to how they once were. Actors need an audience; football’s drama needs the crowd reaction. But in other areas, perhaps huge numbers of people no longer wish to work, travel and communicate as they used to. When full or part-time working from home has become the new norm, will office dwellers finally turn away from the spell of the daily commute?
The service industry which is “the Law” sits precariously between the two possible routes. On the one hand huge areas of commercial law, from conveyancing to mergers and even probate can be conducted very efficiently and practicably from a home office and using telephone and video communication with clients. But what about the UK’s adversarial approach to litigation? The drama of the courtroom is often as compelling as The Mouse Trap. Clients (especially non-corporate clients) comment that they need the reassurance of speaking face to face with their lawyers. At the beginning of lockdown, when courts were effectively shut and clients could not attend solicitors’ offices, most litigators presumed that litigation was not possible on a national scale without in-person interaction. Many of us spent our Skype chats asking each other how quickly we could all get back to working (as we had). But after 16 months the litigation landscape has perhaps changed permanently, for better or worse.
Practitioners who may not have been tech-savvy before the Pandemic forced them to work from home, had to learn to type better (or in some cases at all), create electronic bundles, hold virtual meetings, and operate on one, two or even three screens simultaneously. Of course, some lawyers have been developing such skills for years. But the real and sudden impact of COVID has been that now all clients and all judges expect their litigation lawyers to conduct the business of litigation in this way.
Even mediations and negotiations have had to be conducted remotely, with parties being virtually transported from break out rooms to joint sessions and back again, sometimes with little warning or when they least expected it. “Remote” mediations were almost unheard of before 2020. Indeed, mediators often stated that one of the great benefits of the process was “getting people in a room together.” Adapting with experience to the new methodology has been essential. A mediator can now mute a participant in mid-sentence, which would not tend to happen at in-person sessions. That might be helpful or harmful, depending upon how judiciously this editorial device is employed. But the real benefits of well-managed remote mediations have been the ease with which many more interested parties (often abroad) can participate fully in the discussion and decision making, and the less “pressured” atmosphere for clients making decisions from the comfort of their own homes or home offices. Like the world of take-away restaurants, it will be interesting to see where the future of mediation lies – in person or home delivery? – once the restrictions are lifted and people can choose their option.
In terms of hearings and trials, it will not be the clients who decide which way things will develop. It will be the judges and the court managers. The “tooling up” by the Courts and Judges has been impressive. There remains a huge backlog of cases, but the Courts and Tribunals are now holding almost all procedural hearings virtually. Even trials are commonly held remotely – though with varying degrees of technological success. Court staff are having to learn as quickly as the advocates and the judges. In a case in which we have both been involved recently the court accidentally failed to record the video trial including the judgment – an error which would probably not have happened in person because the Court’s “recorder” clock visibly ticks red in a court room. The result was that, weeks later, the lawyers who attended at the trial had to agree a joint draft of the judgment for the Judge to approve before a decision could be made as to whether the unsuccessful party would launch an appeal against the decision!
The reality is that many of the old ways of conducting litigation can now be seen as out-dated and inefficient. Sending advocates around the country to sit for hours in a Court building waiting to attend 15-minute procedural hearings in person was a huge waste of time and money. Creating 8 paper copies of a trial bundle (95% of which was never even referred to at the trial) was wasteful of natural resources and horribly unwieldy. But litigation is an art, not a science. Skills and expertise in judging client reaction and understanding in a fact-finding meeting, cross-examining witnesses at a trial, or engaging in meaningful legal argument with Appeal Judges, through the prism of a video call, will present new challenges for litigators.
The situation might change when restrictions are lifted but, if the current practices of clients and judges are “the new normal,” then COVID 19 will have seen the greatest revolution in the way litigation is practised both in terms of how we might work and meet in the future, and how cases are case managed and decided.
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