Hybrid ways of working may become the norm for legal proceedings
23 November: There has been a shift to virtual legal proceedings amid the coronavirus pandemic. ICAEW Insights spoke to forensic accountant Hayley Boxall, who believes the future will be a combination of virtual and in-person hearings.
COVID-19 has inevitably caused disruption to legal proceedings but the need to push ahead with cases has led to new ways of working and accelerated the adoption of available technology. While certain hearings have taken place by telephone for some time now, the pandemic has resulted in the parties participating in virtual court proceedings (particularly those involving witness and expert evidence) using video technology, such as Microsoft Teams, Skype for Business and Cloud Video Platform.
The UK government has issued guidance on what to expect and how to prepare when participating in remote hearings. Although in-person court appearances are still taking place, the Crown Prosecution Service indicated in an October 2020 data summary that “social distancing has had a significant impact on the progression of cases” with jury trials having been particularly affected.
Hayley Boxall is a partner at law firm Pinsent Masons, who leads the in-house forensic accounting team, which works alongside lawyers to provide clients with a multi-disciplinary approach to advising on disputes. She is chairing a session on technology in legal proceedings this week at ICAEW's Forensic and Expert Witness Conference and confirms that the first reaction to the coronavirus was to postpone the more substantial hearings.
When the lockdown began in March, the team was involved in a matter which had an arbitration hearing scheduled for June which was then delayed. “The initial reaction was: ‘We can’t possibly do it remotely.’,” she remembers. “People thought it couldn’t happen because there were too many witnesses, too many jurisdictions and a need for simultaneous translation.”
Despite these reservations, the arbitration went ahead in September on a “hybrid basis”. Legal teams participated from their respective offices in London and Paris virtually, while experts based in France gave their evidence at the hearing in person.
Working out the logistics was an added complication in preparing for the hearing, with a lot more time spent by the respective legal teams working out where exactly everyone was going to give their evidence and testing the respective technology. There were also concerns about whether the technology would drop out, be slow or how people would react, but Boxall confirms it worked well.
"Ahead of the event there were concerns about the technology, that it would drop out or be slow, or people wouldn’t react well to it, but it worked really well,” she says. “It proved to those involved that the process could work virtually.”
Ramping up digital adoption
Pre-COVID, video links were already being used in limited circumstances in legal proceedings, such as when a witness was based in another country. Also most case management hearings were being conducted via telephone with the courts.
The pandemic has led to a significant acceleration of the use of technology in legal proceedings with factual witnesses, expert witnesses and legal teams providing evidence and examination over video conference calls, and with parties watching proceedings online.
“Previously the uptake of use of digital technologies had not been as great as many considered it should have been, now people know it does work and I expect the pandemic will be a catalyst for change and further innovation,” says Boxall.
In her role as an in-house forensic accountant, a lot of work was already taking place remotely so, on a day-to-day basis, she says not much has changed. Her team works alongside lawyers, giving their view on matters such as the value of claims, what the challenges are going to be and where expert evidence will be needed. They also work with experts and across jurisdictions.
“As a team we have always been scattered over the UK and worked with colleagues in different offices both in the UK and on a global basis, so a lot of what we were doing was done remotely,” she explains. “For some time now, forensic accountants have been used to collecting data remotely rather than visiting client sites."
The key difference since COVID, she suggests, is more use of video conferencing rather than telephone calls for interactions with her team and lawyer colleagues and in the interactions with those outside the firm including clients and experts. Whereas previously formal meetings with clients and experts were likely to take place in an office, the pandemic has led to a greater acceptance that those meetings can happen virtually.
Impact of new technology
As well as enabling legal proceedings and arbitrations to take place, the increased use of digital technologies may have wider impacts on legal proceedings. Boxall believes that virtual hearings have resulted in more emphasis on the alternative ways that complex evidence may be presented at hearings and that there is potential to increase the use of visual graphic tools.
“In US litigation cases you see more diagrams and visuals being used to help judges, tribunals, and, in cases such as fraud investigations, juries understand the issues,” she says. “We've been promoting the use of visual graphics in formal proceedings for a while to enhance the verbal testimony and cross examination, but there has been some resistance from counsel and legal teams. This year, I’ve seen experts giving presentations at tribunal hearings which include more visuals.”
Boxall suggests that the next development will be seeing these types of visual aids more in litigation, as lawyers, judges, arbitrators and court staff get more comfortable with using digital technologies in proceedings.
She also highlights that the switch from traditional in-person to online proceedings requires an adaptation of skills, for those giving oral evidence and also those cross-examining witnesses. “Advocates read body language and non-verbal cues to help them decide what to say next, what line of questioning to follow, whether to revisit a question or ask it in a different way,” explains Boxall.
Alongside the challenge of presenting, virtual hearings can also result in some logistical challenges at the most basic level. “One of the biggest challenges with remote hearings is agreeing when to hold them when parties are in different time zones,” reveals Boxall. “In the past we’ve had a London hearing where one party was based in the US and the other in Saudi Arabia. How would that work virtually?”
The role of digital technologies in future
Now technologies have proven a reliable way to enable legal proceedings to occur virtually, Boxall believes there will inevitably be a hybrid approach in the future. She foresees a core group of people in the hearing room, including counsel and significant witnesses, with other witnesses providing evidence virtually, potentially experts giving evidence virtually and clients listening to proceedings online.
“I think there will be much more of a cost-benefit approach taken to apply technology where possible, which fits in with the aim of making court hearings and arbitrations more cost effective,” she says.
However, she believes that there are some legal processes, such as mediations, that may largely revert to being conducted in-person.
Boxall says: “While mediations have been happening virtually over the last few months and have in the main been working well, many have taken place virtually because there was no other option. While virtual mediations may continue for some cases, mediators that I have spoken to are pushing for them to be conducted in person again and I expect that parties will also prefer to conduct mediations in person or in some hybrid format."
Although it’s still too early to tell if wider adoption of technology will take root over the longer term, COVID has shown that the legal profession can do things differently. “The benefit of the past few months is that people who were less keen to use technology or didn't believe it was stable enough to trust it for something as important as a legal hearing, can see that while different factors need to be taken into account when preparing for hearings and there might be some hiccups, new ways for conducting hearings are feasible,” says Boxall. “There's a lot still to be worked out and people are still nervous, but the pace of change is phenomenal at the minute."