Posted by Ross Birkbeck, and founder and inventor of Legal Futures Associate Casedo, and a barrister at Old Square Tax Chambers
The other week, I received my first directions to file an e-bundle. The hearing had already been adjourned to mid-May, but Covid-19 had kicked that into the long grass and we were going to have to wait for another date and a video hearing.
And since it seemed everyone would be attending from home, the bundles (three of them, two already printed for the previous adjourned hearing, one new) would need to be sent to the judge and the other side electronically.
Interestingly, the tribunal (I do tax) was not foolish enough to merely ask for digital bundles. They also asked whether:
- I had multiple screens for conducting the hearing;
- I had a quiet and private space for conducting the hearing; and
- I was able to record the screen, and was conscious of my responsibilities about doing so.
This suggests to me that the court system is finally getting to grips with the notion of digital advocacy.
Digital lawyering cannot be done effectively from an 11-inch iPad, and certainly court advocacy cannot – you need both the proper tools and an understanding of how to use them.
Even more interesting was the fact that, ever since I have been a barrister, I had always had to negotiate the court’s implacable commitment to the paper archetype: the physical bundle was the master document. Yet here I was being directed to break ranks and enter the new world.
But I’ve long been committed to working without paper, so perhaps the most significant element of the directions was the one that, I suspect, is most likely to hang around after the pandemic has passed: e-bundles.
The courts have been moving towards e-bundles for some time. The Supreme Court, as usual, is modernising faster than most and has for some time had detailed guidance on how to submit e-bundles. It is depressingly, if understandably, committed to the PDF format (there is no real alternative at the moment). And the Cherry case showed that even this most nimble of courts messes things up, but still.
Further down the hierarchy, progress continues. The criminal court’s Digital Case System seems to be working well (perhaps as a result of the monopoly position held by the Crown Prosecution Service).
The family court also seems to be ahead of the game, with the Financial Remedies Courts’ (FRCs) good practice protocol of 7 November 2019 stating: “The FRCs will endeavour to adopt environmentally friendly processes. For example, where possible, parties will be encouraged to conduct hearings on a paperless basis.” This may be something to do with the size and structure of family law bundles suiting a paperless approach particularly well.
But confusions are immediately apparent: whilst Mr Justice Mostyn’s FRC e-bundles protocol says that “all documents are to be contained, if possible, within one single PDF file”, it also says “the e-bundle should be delivered via a cloud-based link (e.g. iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails”.
The impression is of a court moving slowly and tentatively towards the inevitable but difficult, and with no confidence that people with figure it out themselves.
So the tribunal’s requirement that we simply produce an e-bundle, with no details as to how, feels slightly like the courts have reached a point – have been pushed to a point – where they no longer feel they have to tread delicately, or hold our hand through the process. The assumption is now that we know what an e-bundle is and how to produce one.
The future is the present
I can’t see how we can go back from this point. E-bundles present no disadvantages, since no-one is prevented from printing out their bundle if they want to. Digital delivery simply shifts the cost of this (environmentally questionable) practice to those who want it. It also removes the costs of distributing heavy bundles physically.
And the advantages are obvious, once you get to grips with the tools for handling them. Search is the most obvious, but portability and accessibility also deliver great savings and efficiencies.
I accept, as I am regularly told, that Adobe Acrobat, the market leader in PDF software (and by extension e-bundling) is a pain to use. In its defence, it’s not designed for the job – it’s primarily for publishers and designers.
But you don’t have to use Acrobat and there are other, better options (including my own app, Casedo) with specific features to make the process easier and faster. And advocates will soon realise not only that the skills for dealing with e-bundles are not hard to learn, but that, whatever the old guard claims, an advocate can move more quickly and precisely around e-bundles than they can around their paper files, by a long shot.
They will discover, as I have, that they miss less, and can organise faster and annotate more effectively. There will be no going back.
I hope the courts will go further. I think the biggest single change that could be implemented now would be a shared storage location for court files for each case – a Dropbox-like space with managed permissions that would allow all parties and the judge to distribute documents to all others transparently and flexibly.
This would eliminate the arcane concept of service once the case is up and running, reduce procedural disputes, save costs and reduce the risk of parties turning up to court with different documents to everyone else.
I would also like to see more screens in the courts and tribunals, so that when an advocate is referring to evidence, they can bring it up in front of the judge, witness and the other side directly. It would not be hard to set up, and would streamline things hugely.
The future beckons…