Remote Trials - Your time has come

A few months ago, I thought that Zoom meant to go more quickly. Now as with many thousands of others I can spend vast parts of my day on Zoom calls. However, even further from my mind was the prospect of conducting an entire trial remotely via Zoom. How did that come about and did it work?

Approximately a year ago Barton Legal was brought in by London firm Peters & Peters, to provide assistance with their management of a fairly complex litigation matter. It had grown and morphed into a full construction claim, complete with four experts and the prospect of a 9 day trial. Nevertheless, there was a strong expectation that settlement would be reached and trial avoided.

Roll forward to January 2020, and we had taken over the full running of the claim, the first tentacles of covid19 were spreading across commerce and we had a pre trial review listed for early April, with trial commencing 4 May 2020. A mediation was planned and still the belief was that settlement was possible.

Within a few weeks so much had changed. Mediation had failed. Covid19 was now an official pandemic. Courts would likely be closed and the Defendant was applying to adjourn the trial.

The application to adjourn was based primarily on the impact of covid19 on the Defendant and their inability to cope with that and manage a trial.

Not only was the application rejected but we retained our trial window on the basis that we would host and manage the trial via Zoom.

During March and April 2020, the official court list of approved providers did and did not include Zoom. There was so much negative press about Zoom that as soon as I mentioned to anyone that we would be using Zoom I started to received regular emails about how unsafe it was, that we would be zoom bombed and that it lacked security and control. I believe a lot of that is false and is based on different uses where parties have not given either any or sufficient thought to the intended use and security aspects.

We engaged a company called Virtual Approval and discussed with them our requirements. It is fair to say that the Defendant’s solicitors took no part in any of this process and whilst approving our choice, they were not engaged.

We agreed security measures as to how people would be invited into the Zoom trial, how to control audio and video, to include entry requirements relating to contempt of court warnings (it is against the law to video or record a trial, without express permission) as well as agreeing that people’s emails had to be verified before they could be sent an invitation.

The trial judge Mrs Justice Jefford DBE agreed that providing that members of the press were covering the trial then members of the public would be admitted. As a result, we eventually had a number of newspapers, blog sites, on-line news agencies and even Private Eye covering large parts of the trial. Consequently, members of the public were allowed to “attend” providing they too had been through the verification process.

In an article such as this there is insufficient space to go into detail about the preparation and exact details of how we planned for the remote hearing (via Zoom). I am happy to discuss those in detail with anyone who asks.

However, in each session the basic format was that the Judge and the parties counsel (Mr Paul Darling OBE, QC and Mr James Burton (both from 39 Essex Chambers) for the Claimant; and Mr Robert Stokell (Crown Office Chambers) for the Defendant, would appear on screen, with every other party not visible and unable to access their video or audio controls.

As a witness was introduced, they would be promoted to a presenter and could then been seen and heard.

During the sessions substantial and almost constant use was made of Zoom’s ability to display documents on screen, either from the Electronic Court bundle or from other documents uploaded by one of the parties.

In light of recent research, Mrs Justice Jefford DBE also introduced a short 10-15 minute break for the parties in both the morning and afternoon sessions. These were extremely useful both as an opportunity to relax and to catch up with exchanges with counsel.

In a remote trial there are many additional things to think about on top of the normal trial preparations. What I would say above all else is that more than ever preparation, practice, and teamwork are essential.

In my view the significance of the case is huge. Technology is powering what could be one of the biggest shifts in English courtroom history. This was about more than how the trial was conducted: empowering people around the world to view cyber-secure, open trials, cuts to the very core of the principle that justice should be seen to be done. The law is amongst the world’s oldest professions; and of course it is time it embraces change.

Every aspect of the case went off without a hitch. Screen sharing allowed evidence to be viewed easily; the defendant saw its main witness repeatedly challenged over video; and even the intimacy of the traditional courtroom remained. Hopefully, even after the lockdown is lifted, we return to a new, digital normal, where there are alternatives that will be available to law firms both in the UK and abroad.

It is probable that many cases have put on hold or perhaps you are a foreign law firm with a case in the UK and you now have issues as to how to maintain progress? We have not only the ability and expertise to help and assist you, but we are now one of the only law firms in the UK to have that all important practical experience. We have conducted a very significant and complex construction hearing entirely remotely, and we are here to help clients, and law firms whether they are in the UK or international, during this crisis.

And if you are sceptical as to the efficacy of a remote trial where you have witnesses and will rely on cross examination then I will leave you with a quote from our counsel, the amazing Mr Paul Darling OBE, QC;

“Amongst the principal concerns when it comes to remote trials is the loss of visual cues. Any barrister will tell you that body language is invaluable in cross examination.

“What the trial has proved beyond reasonable doubt, however, is that none of the intimacy of the physical courtroom is in fact lost with a remote trial. Rather, video sharing can in fact heighten our ability to dissect testimony, whilst opening up proceedings to the public.”

Bill Barton


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