Is Covid-19 forcing the courts to catch up?

As governments around the world put in place measures to limit the spread of COVID-19 and protect the most vulnerable from infection, individuals are adapting to a new way of life.

Normal working practices have quickly shifted to enable people to work remotely and comply with requests to self-isolate and distance themselves from others. It seems inevitable that this will be obligatory for the foreseeable future and one wonders whether the changes could become the “new normal”.

In the legal profession, there has been a steady move towards lawyers working from home but this is generally only one or two days a week and is ordinarily arranged on an individual basis.  Now, entire firms are based at home with no sense of when they will be able to return to their offices. Software is in place for individuals to logon and view their desktop as though they were in the office with their calls diverted to mobile phones. Using technology such as LoopUp, Zoom and Microsoft Teams, firms and individual departments are able to continue to communicate effectively and to check in regularly with developments in their files and cases. Documents can be scanned on mobile phones and letters can be signed electronically and sent as PDFs. Barristers have made it clear, via emails from their senior clerks, that conferences can take place via Skype or telephone. They are also making rooms available to enable remote hearings, arbitration and mediation to take place.  Polite requests have been made for documents to be sent by email and for briefs and Court bundles to be sent in electronic format.

There have been circulars from the Courts indicating that hearings are to take place remotely using the technologies noted above or involving advocates only; with their clients on the telephone (which for many will be a great relief, Court attendance being notoriously stressful for lay clients). Applications are to be made and Court papers filed electronically. These will be viewed on-screen by the judiciary, an example of modernisation which many have been seeking for years but which have not yet been put in place consistently or effectively in this jurisdiction.

These swift and practical arrangements enable the profession to provide a consistent service to their clients.

Why they have not been put in place before? The practices are convenient, cost-effective (for firms and for clients) and environmentally friendly – what volume of paper has been saved this week since going paperless? It is presently not known how long these measures will need to be in place though it appears that it will be at least several months. This will certainly be a long enough period for people to become accustomed to this way of working and, if it does come with wide-ranging benefits, it is likely to represent a sea-change in the way the profession operates in the long-term.

Once established, this could be hugely beneficial to working parents who have shown to their employers that they can do their job just as well while operating flexibly and therefore feel able to keep working when they might have otherwise felt compelled to stop due to the competing demands of office life and child-rearing. This would undoubtedly lead to otherwise lost talent remaining in the profession.

But would such change be universally positive? We are already, more than ever before, required to be available to clients by way of our mobile phones. This means for many it is no longer acceptable to suggest that a holiday means they are non-contactable. If it becomes well-established that we are able to work under any conditions, will this perpetuate the expectation of clients to be able to have access to their legal team at any time? In addition, if face-to-face meetings are reduced, there is a risk that the important nuance of human interaction is lost. Would the subtleties of a complex negotiation be effectively communicated on a screen? Would family lawyers pick up on delicate hints from their clients that something is not quite right (are they withholding disclosure or, more troubling, not revealing a sensitive issue such as domestic violence?). Care must be taken to preserve the very human aspect of the job which requires sensitivity, understanding and empathy.

The priority of course is to follow the appropriate guidance to keep the population as safe as possible during this difficult time and it remains to be seen what the wider consequences will be when the crisis is successfully overcome.

This article first appeared in Lawyer Monthly.