Litigation: when is it time to get up close and personal?

The recent surge in digital communication is obviously a reaction to the lockdown. The interesting question is whether this will be a temporary phenomenon, or rather what might be seen as an overdue sea change in the use of technology in the law.

The technology which can be used to conduct meetings and indeed court hearings through video link has been widely available since the 1990’s. However, bizarrely, at the commencement of the lockdown one chambers claimed that they had conducted what they believed to be the first joint settlement meeting by video link. In my experience, negotiation through a joint settlement meeting or mediation by way of video link has been ongoing for at least the last 20 years, albeit still a very small minority of the total number of such negotiations.

This lack of use, and indeed appreciation of the use of such technology is no doubt substantially explained by inertia and conservatism in the law. The advantages of digital communication are obvious, both in terms of commercial benefit and also perhaps more importantly at this time, environmental impact. One possible positive outcome of the Coronavirus crisis, following swiftly on bushfires and floods, is that it might make more people appreciate that we cannot continue to abuse the planet in the way we do.

If digital communication is to become the norm, is it realistic to anticipate that this will extend to all aspects of litigation, to include contested hearings and trials?

Last month, Mr Justice Mostyn conducted what was said to be the first full hearing in the Court of Protection by way of video link. The Judge and the lawyers involved all considered the hearing to have been an unqualified success. Interestingly, a different view was taken by Professor Celia Kitzinger of the Transparency Project website. As reported in Legal Futures, Professor Kitzinger had spent the hearing in the company of the principal witness, the daughter of the patient who was subject to the Court of Protection hearing. The patient’s daughter, Sarah, had flown in to the United Kingdom because she expecting a face-to-face hearing. She gave evidence in a small room with her solicitor and barrister observing the social distancing rules. She was clearly dissatisfied, indeed apparently upset, about the way the hearing was conducted. She was quoted as saying:

"In a courtroom people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through. But I was in a little 1-inch box on a screen and being honest, I bet half of them weren't even engaged in looking at it – as the Judge couldn't monitor them to make sure they were paying attention."

We have the options of communicating by telephone, video link or in person, in relation to many aspects of our lives . How do we decide which is the most appropriate?

First, it is reasonable to think that an important factor is how well we know the individual in person. With those we know very well, we are quite relaxed and confident in communicating by telephone. This is because we are familiar with the person and can sense from just the tone of their voice whether there is anything beyond the mere words being used, that is being communicated. We are less able to do this with people we have not met before. Here, we need much more of an impression of the person, to include the visual clues to which the witness Sarah made reference. The screen on a video link is still not good enough to give a full impression of the facial and body language of a person speaking. I have had many conferences with experts on the telephone. I think how well I know the expert is an important component to how effective this is. I still insist on having face-to-face conferences with experts at what might be described as crucial stages in litigation. This would, in particular, be the case when the action was running towards trial. I do not just want to hear what the expert has to say, but I want to form an assessment of how he or she would come over to a Judge in cross-examination. I would not be confident of doing this on the phone.

Secondly, the sensitivity of the information to be communicated is an important factor in deciding how to do it. There is an expectation that bad news, for example a poor diagnosis or prognosis from a doctor or the loss of employment, will be communicated in person. There was outrage when certain employers decided to tell their employees that they were being made redundant by text. This represents an expectation that sensitive information with an emotional impact should be communicated in person.

These factors probably underlie the different perceptions in relation to the Court of Protection hearing. For the Judge and the lawyers it was, in effect, just another day at the office. In saying this, I am not in any way suggesting that they were being insensitive to the situation, but those of us who are habituated to the courtroom are able to feel more relaxed and confident in that environment. For the witness Sarah, however, it was an important and emotional day of her life and she did not feel that this was significantly acknowledged in the process by video link.

Therefore, whilst the increased use of digital communication is undoubtedly to be welcomed and here to stay, there will remain, in my view, limits. Certainly in the short to medium term it is unlikely that trials by video link will be deemed satisfactory to most litigants. In the long term this may change, since eventually communication by video link will be more common than communication in person, and therefore represent the norm of human contact. That day is, however, I think, a long way off. We are all missing the daily personal contact with our friends and colleagues.