Guest post by Louise Duckett, solicitor and children panel member at Davis Simmonds & Donaghey, on behalf of Legal Futures Associate Thomson Reuters
In just a few months, the Covid-19 pandemic forced changes to the legal sector that might have otherwise taken a decade or more. Before we knew it, we were thrust into a world of remote work, conference calls, and virtual hearings.
Many of the advances made during those early months of the pandemic have remained — at least in part. It is now much more common for law firms to allow staff to work from home for a few days a week, for example, and online hearings remain commonplace.
Moreover, the courts and local authorities that I deal with as a family lawyer have showed renewed interest in rolling out digital systems to support our work. While not perfect, these systems can make procedures considerably more efficient. That’s often good news for law firms and good news for clients.
However, rapid digitisation threatens to leave some people behind. Family law cases, with their many complexities and sensitivities, do not always fit within the highly streamlined nature of digital case proceedings. Often, this mismatch affects our most vulnerable clients, putting them at more of a disadvantage.
We shouldn’t take for granted the progress we have made. As legal aid providers, firms like ours can now make and manage applications using the Client and Cost Management System (CCMS), which simplifies the process and helps us progress cases more quickly with less administrative burden.
We also have the MyHMCTS portal, where parties and judges can submit and access documents related to a filing.
It is much more common now to use software to prepare e-bundles, which can then be shared with other parties and judges. This is a faster, more secure, and more environmentally friendly way of managing evidence and allows us to more easily include the modern exhibits – digital imagery and video, for example – that are frequent features of cases today.
One of the software packages we have used recently proved its value during a 45-day child-protection case. This involved some highly complex evidence and documentation, but the software directed everyone in the hearings to the exact points of evidence at the right time. We were literally all on the same page at the same time.
The case also involved a good deal of video evidence. In days gone by, that would mean gathering around a TV in a courtroom, with the court clerk rewinding on request. Using a common software platform, we could all view the video in our web browsers simultaneously — or whenever we needed to.
Proceeding with caution
All these tools, however, have their drawbacks. There isn’t always consistency in their use, and not everyone has access to the same software or systems. Counsel cannot always access the court portal, for example, so they often miss out on updating papers. Plus, any digital system is subject to outages, issues, and the need for training.
E-bundling, while great for law firms, also has some drawbacks. Depending on the software, it may be hard to include files above a certain size, like large videos or high-resolution images. Some tools don’t allow for litigants in person, meaning that self-represented parties – common in family law – can’t prepare bundles with the same level of professionalism, if they do so at all, as an organisation using the tool would.
This leads us on to the key issues at the heart of digitisation of our sector: accessibility and fairness.
In family law, this doesn’t just mean giving everyone access to the same tools and platforms and assuming that creates a level playing field. Personal circumstances dictate that many people involved in family law cases may actually be at a disadvantage when faced with a more digitised experience.
First, not all participants in a case have reliable access to the internet. The most vulnerable people in our system are the least likely to, and viewing a hearing on a mobile phone is not the same as being there in person.
While we professionals might have two or three screens open to have all our resources to hand, clients attending remotely will rarely have this privilege.
Second, digitising proceedings removes much of the face-to-face interaction that is vital to family law, in particular. It is harder to pick up on small cues and body language over a video connection, for example. This changes the experience of a hearing when dealing with witnesses.
According to Berkeley Research Group, cross-examination techniques are “significantly less effective” when done remotely.
Work by the Nuffield Family Justice Observatory has found further areas of concern. In my experience, some people do not see virtual hearings as being as ‘serious’ as in-person hearings. Some have logged onto calls from bed or from inappropriate places. Some find it hard to follow proceedings via a screen.
In these cases, having a representative by their side would surely result in better outcomes and a better impression of the process overall.
The right level of digitisation at the right time
The issues here are complex and subtle. It’s not the case that digitising processes always favour certain parties and disadvantage others. Some tools make it easy for litigants in person to build and present their cases, and virtual hearings may mean that witnesses or parties can access court services without having to take time off work or seek childcare, for example.
Whenever we are implementing or mandating a certain way of working, we have to keep in mind who we are trying to help and balance everyone’s needs. That includes the everyday professional court users, law firms, clients of all types, and taxpayers who fund many of the digital systems we are discussing.
In family law, there is a widespread feeling that simpler case management hearings would benefit from more virtual settings, while complex cases would work better in person, supported by the various auxiliary technologies used to manage cases and build bundles.
The past few years have shown that time is a precious commodity. While we are under pressure to clear huge case backlogs, clients still need that time to have things explained to them, to be heard, and to absorb what’s happening. Let’s not forget this as we seek to make justice more efficient.