Marks & Clerk Law recently participated in the first ever fully remote hearing in the Court of Appeal. We want to share what worked well (and what didn't) in the hope that others in the legal profession can be better prepared and those in a position facing an upcoming hearing can be assured, the courts are still open for business.
Lesson 1: Bundles
The Court of Appeal ordinarily works from hard-copy documents and the rules on bundles are rigid. All documents must be single-sided and the requirement for continuous pagination often means that the bundles used at the High Court need to be replaced just for the sake of page numbers (these rules will no doubt make the environmentally conscious wince). It was immediately clear that producing and delivering hard-copy bundles to the judges and other parties would not be possible.
In the circumstances, the Court agreed to work from electronic bundles whereby each bundle was a single bookmarked PDF. Any updates or cross-referencing issues could be resolved with the click of a mouse rather than a small army of couriers. We shared the bundles with the Court and the other parties using a Dropbox for Business account and ensured that we maintained good lines of communication. The lesson here is that good communication and vigilant online document management is key.
Lesson 2: The hearing
There are many video conferencing services now available each suited for specific tasks. For the remote hearing we used Skype for Business. Solicitors for the parties hosted the video conference and the judges joined the video conference using specially created judiciary accounts.
The hearing was of particular interest to other companies and law firms operating in the pharmaceutical sector. One of the biggest challenges was the large number of people wanting to observe the hearing as if they were sitting in the public gallery of a physical court. Anyone who has sat on a video call knows the impracticalities of a large number of participants. We had to balance the requirement for open justice against the technical practicalities. Through correspondence via the judge's clerks, it was decided that a single member of the press would attend the video hearing and a live real-time transcript, arranged by our team, would be available to any member of the public wishing to observe the hearing. This solution worked well and was well received by the court. A large number of people followed the live transcript.
In terms of the hearing itself, the judges and counsel for the parties were on video (six video streams in total) with solicitors and clients being "off screen" and on mute. The panel quickly discovered that it was important that everybody other than the person speaking should mute their microphone to avoid feedback loops. Whilst the hearing initially felt clunky people quickly adapted and it felt, at least to us, relatively normal as the day went on.
Another important aspect of any hearing is the ability for counsel and instructing solicitors to communicate freely and in private during the hearing. This presented its own technical challenges during a video call with multiple parties where it would be all too easy to inadvertently share a comment with the judges or the opponents. A dedicated WhatsApp group with counsel proved a good solution.
Take home point:
Considering that this was the first ever fully remote hearing, we expected far more problems than those actually faced. Having sat through numerous internal video conference calls, we were largely able to anticipate the problems before they arose and were particularly grateful to the court for relaxing their normally rigid rules. So, with a bit of common sense, good communication and the option to mute microphones, the hearing went to plan.
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