A guest post by Maren Strandevold, an associate in the disputes team of Haynes & Boone
The lockdown across the globe has resulted in a number of industries having to learn quickly how to do business virtually rather than in person. For the legal profession, this was challenging as lawyers are notoriously technophobic.
However, the courts, arbitration institutions and lawyers rose to the challenge and judging by the number of articles on the topic, as a profession we are now all experts in virtual hearings. Looking ahead as lockdown eases, what lessons do we take with us into the future and what is best left for the history books?
Parties to both arbitration and litigation have praised the ease with which it was possible to transition to virtual hearings. Whilst there have been obstacles, such as technology outages and getting used to presenting via a video link, the general consensus seems to be that parties have managed to make virtual hearings work.
However, making something work in a crisis is a far cry from being a solution that should be adopted wholesale as we start to return to normality. Whilst virtual hearings have largely been concluded successfully, there are downsides.
One of the most common complaints is the difficulties in communication between clients and the legal team during the hearing. It seems that the long-standing tradition of passing Post-it notes to counsel is still more effective than WhatsApp.
The positive experiences with virtual hearings might mean that video conferencing is used more widely going forward, for example for case management and interim hearings or to enable to save costs by having some witnesses and experts attend remotely.
However, it is unlikely that the fully virtual hearing with all participants dialing in individually will continue.
Dealing with documents remotely requires good electronic filing and if you are preparing for a hearing, you may have to assemble your hearing bundles electronically.
Many are more comfortable with the hard-copy bundles, but there is no doubt that electronic bundles and the use of electronic evidence display can speed up proceedings and is easier to share and distribute. That also holds true when you are conducting hearings in person.
However, to create an efficient electronic bundle, you need good document management from the outset of the case and this is true regardless of whether you are working remotely.
In litigation, when we talk about electronic document management, the focus tends to be on electronic disclosure; however, documents are generated at all the key stages in a dispute and include pleadings, witness statements and expert reports. All of these are likely to cross-refer to each other as well as any documents produced by way of disclosure.
Whilst it may seem basic, the way in which these are produced and stored is important because it will affect the ease with which documents are later collated into a bundle. Having one central and well-organised location for documents also makes collaboration within the legal team easier and more efficient, particularly if you are working remotely and you cannot simply walk over to the nearest secretary or paralegal to ask where to find something.
It is likely that, going forward, there will be more remote working and more impetus to collaborate electronically with clients as well as your own team.
The adoption of good practices in terms of electronic document management should therefore be a key takeaway. It will not only make working more flexible in the event of further lockdowns, but it will also be more efficient and save costs.
Working with technology providers
One thing that has been highlighted by the lockdown is the lack of understanding between lawyers and technology providers. Technology providers with little or no knowledge of legal practice have had to deal with lawyers with a limited grasp of technology.
Technology providers cannot assume that lawyers will have a certain level of knowledge. Particularly, when dealing with more mature lawyers, they may not know what a URL is or that there are different types of browsers.
On the other hand, lawyers need to work harder to understand technology and take an active interest in what is available and the development of new products.
Lawyers often bemoan that the technology available to them is not user friendly or does not have the functionality they desire. However, if they are not able to clearly communicate their needs, the technology providers will not have the information they need to develop the relevant tools.
The lockdown has forced lawyers to embrace technology in an unprecedented manner. Hopefully, positive experiences with technology will lead to it being adopted more widely to manage disputes more efficiently.
However, the focus has been on virtual hearings and lawyers may think that this ‘expertise’ is sufficient. There are more valuable lessons to take away from this experience and it is crucial that lawyers build on the new knowledge that has been acquired and do not rest on their virtual hearing laurels.