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Law360 (March 30, 2021, 2:27 PM EDT) --
Perhaps the most rapid change to litigation practice brought about by COVID-19 has been the shift to virtual trial formats in place of traditional in-person trials.
Although arbitration proceedings have been conducted with virtual elements for some time, this has not been the case for litigation before English courts.
Almost overnight, practitioners and courts have had to adapt to a new way of working.
1. Communication is key.
The best way to make sure virtual trials run smoothly is to communicate effectively with other parties and the court.
Establishing a good working communication stream with opponents throughout the course of lengthy litigation can be challenging. However, in order to effectively plan for a virtual hearing, matters such as the trial timetable, the trial bundle and ancillary services such as interpreters and a virtual hearing platform need to be settled as early as possible.
These arrangements require the cooperation of all parties. Better progress can often be made via calls than in the exchange of correspondence. The parties must be flexible and approach logistical matters in the spirit of cooperation for virtual trials to run smoothly.
It is likely that whichever judge is hearing your case will have their own preferences for whether the trial is conducted in a wholly virtual or hybrid arrangement. In our experience, judges have generally respected the wishes of the parties and given preference to arrangements agreed between them where possible.
In our cases, this has included arrangements for witnesses to attend from remote locations, extensions to sitting hours to accommodate different time zones and a secure daily livestream of proceedings for client viewing. As with a normal trial, prompt communication with the court is essential for any special arrangements that may be needed.
2. Planning prevents poor performance.
A virtual trial includes all of the elements of an in-person trial, with the additional complications of members of the counsel team, solicitors, witnesses and experts being based in different locations and operating from an electronic set of documents.
The restrictions in place as a result of COVID-19 can shift rapidly, with little notice. It is necessary to plan on the basis of a number of different scenarios, which range from a standard in-person trial to a completely virtual trial and everything in between.
Smaller trials are relatively straightforward to conduct virtually. The level of planning for a virtual trial increases with the number of sitting days, as more witnesses and experts need to be accommodated in the trial timetable and in their own locations or time zones.
As experienced practitioners will know, even in the best circumstances it is not unusual for trial timetables to slip. The impact of slippage is much greater in a virtual trial where logistics have to be planned so carefully in advance.
Some of the key elements to consider when planning are:
- Location of counsel and solicitor teams: Will the counsel team be sitting together in one room or in separate locations? Will solicitors be sitting with counsel or in a separate location? How will counsel and solicitors communicate with one another throughout the trial if they are not sitting together? Is training required for team members to use the chosen electronic messaging platform?
- Physical space: Do you have a meeting room with sufficient space to accommodate the counsel or solicitor teams in a socially distanced arrangement? If not, could you use an external facility?
- Technology: Identify the key participants on your team who will need to speak during the trial. What is the preferred device and screen setup for each participant? Do any members of your team require training on any of the technology in use?
- Key documents: How will the trial bundle be made available to counsel teams and the court? Will it be feasible to arrange hard copies in addition to the electronic trial bundle? How will hard copies be updated in the event updates are needed? What protocol will parties follow for the uploading of documents to the electronic trial bundle?
- Testing: All elements of the setup should be tested ahead of the trial. This includes the strength of internet connections, the quality of audio streams and the camera positions in each hearing location.
- Observation of witnesses and experts: Where will witnesses of fact and expert witnesses be during their testimony? Do you have in-person resources available in each location to observe the witness and/or expert testimony?
- Interpreters: If interpreters are needed, do you intend to use simultaneous or consecutive interpretation? Can your chosen hearing platform support simultaneous translation? Is your audio quality of a sufficiently high standard to permit interpretation or will additional technology such as headsets be required?
3. Try to read the room.
There are both positive and negative consequences from of the lack of physical proximity during virtual trials.
From what we observed, on the positive side, witnesses seemed less nervous giving evidence by video. Not having to stare down opposing counsel in a formal courtroom setting made giving evidence much less intimidating. Having the counsel and solicitor teams sitting together but out of sight of the judge and opposing counsel made giving instructions easier. Likewise, having a video stream meant that members of the solicitor and client teams following proceedings from other locations could send through documents and comments in real time.
There were, however, times where witnesses and counsel spoke over one another, and problems with technology and audio quality interrupted their evidence. There were also difficulties in the timing of interpretation, and it was difficult to make arrangements for continuous rather than sequential interpretation. Experienced expert witnesses reported that they found the flow of virtual proceedings to be different from the normal back and forth in regular trials.
For counsel and solicitors, however, perhaps the biggest downside was the lack of physical proximity to the judge.
Normally, when sitting in a courtroom and participating in proceedings, parties can get a sense of the judge's thoughts or feelings about how the trial is proceeding.
Whether they ask questions, change their facial expression or ask counsel to move on during a lengthy cross-examination, judges give cues as to matters of particular interest or disinterest throughout the hearing. Interpreting these cues has always been a favorite pastime of litigators and counsel teams during breaks and when the day ends.
During a virtual trial, however, it is more difficult to gauge the judge's interest in particular subjects. Screens are impersonal and do not convey facial expressions or body language in the way that physical presence does.
Further, during a virtual trial, the judge must take a further step and unmute their microphone in order to ask a question of counsel. In our view, it seemed that the judges in our virtual trials asked fewer questions than judges in standard trials.
Virtual trials have created a range of new hurdles for litigation lawyers and parties to litigation. There have been, however, some unexpected benefits arising out of virtual trials. These include:
- Increased client involvement and decreased disruption to client business, as clients are able to view the livestream of a trial directly from their home or office without needing to travel to London;
- Greater cooperation between the parties in matters such as the trial bundle, trial timetable and other logistical arrangements;
- The uptake of more legal technologies, particularly electronic hearing platforms; and
- Better adherence to the trial timetable, likely because rearranging virtual trial matters would require more effort than rearranging in-person hearing days.
Given the uncertainty of the changes wrought by COVID-19, and the extensive delays already caused to hearing dates as a result of the pandemic, it seems clear that virtual trials are here to stay in one form or another.
It is difficult to see how short applications couldn't be conducted virtually. Hearings of more complex matters that do not require witnesses might also be conducted more efficiently as virtual trials. Whether courts and practitioners will choose to proceed in this way once it is no longer necessary is uncertain.
As the restrictions related to COVID-19 are gradually lifted, we expect to see parties returning to in-person trials.
However, we also expect that the use of video link technology — for witnesses and experts in particular — will increase compared to trials which took place pre-COVID-19, as it saves costs and is much more convenient where parties and witnesses are based in different locations.
It will be up to practitioners to adapt to the new challenges, and there is no doubt that new lessons will be learned along the way.
Christopher Boyne is a partner and Emma Laurie-Rhodes is an associate at Debevoise & Plimpton LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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