Zooming in on Virtual Hearings
It is almost a truism that innovation is a good thing. But the legal industry is infamously slow to embrace innovation. Richard Susskind, one of the world’s pre-eminent legal futurists, had predicted in his book The Future of Law (published in the mid-1990s) that e-mails would become the key mode of communication between lawyers and clients. His suggestion, however, was met by a response from the UK Law Society, that Susskind was “dangerous” to suggest that e-mail should be embraced by the legal profession.
In an interesting turn of events, the COVID-19 global pandemic has necessitated almost every legal professional to embrace the use of technology in order to continue providing legal services. This includes legal institutions such as the Singapore courts, which have adopted the practice of virtual hearings via Zoom due to Circuit Breaker measures, and from the looks of it, it will, at some point, become a permanent practice. Such developments might have been unthinkable just a couple of decades ago.
In this article, LVM Law Chambers speaks with two of the firm’s young lawyers, Of Counsel Justin Chan and Associate Samuel Lee, who have recently taken part in virtual hearings. Justin has also just returned from his Masters’ programme in London, having completed a module on The Future of Legal Practice.
Thank you Samuel (S) and Justin (J) for agreeing to this interview. To start off, perhaps you could share your experience of a virtual hearing?
S: Prior to the Circuit Breaker’s implementation, back in 2019, as a trainee, I took part in a few Pre-Trial Conferences (PTCs) conducted by video-call. I’m glad to see the return of virtual hearings, as everyone benefits from the administrative efficiency of having less contentious hearings being conducted remotely.
J: I had my first virtual hearing before a High Court Judge for a contested interlocutory application. This was prior to the nationwide implementation of the Circuit Breaker measure but the virtual hearing was conducted as part of the Supreme Court’s COVID-19 measures before then.
It was a novel experience for me, and I was quite excited to try something new. The only other times I was involved in a hearing and which involved anything “virtual” was when I attended a number of Criminal PTCs where the Deputy Public Prosecutors were attending the PTCs remotely. It was interesting to experience first-hand making substantive arguments without having to be physically present before a Judge.
Once the technical issues are sorted and out of the way (the first few minutes were really to ensure that everybody could be heard by everybody else), it was business as usual.
What are the similarities and differences of a virtual hearing compared to the traditional method of a physical hearing?
S: I think a majority would prefer having the more contentious hearings carried out in person as some lawyers hold the view that it is easier to get a feel and sense of whether your arguments and points are hitting home when addressing the Court in person. Adjustments to how you pitch your case can be made on the fly. This seems slightly more challenging to do remotely, where it is more difficult to observe the minor reactions and body language that some lawyers look out for when making oral submissions. If nothing else, a lead counsel can speak with the assurance that his tone, volume, and body language are being conveyed in the same way he has practised throughout his career. A virtual hearing may subtract from or obscure some of that confidence if there are technical disruptions.
However, I think it is fair to understand that these are minor discomforts. The overall structure of a hearing and the preparation required for it remains the same – effective advocacy will remain effective regardless of where or how a hearing takes place. What difficulties we face are mostly discomforts and our own resistance to change, which should ease over time.
J: I actually felt quite comfortable from the start. I suppose there is a certain calming effect of being in the comfort of your own office/home (i.e. like being in your own “home ground”). Once the technical issues are sorted and out of the way – the first few minutes were really spent to ensure that everybody could hear each other – it was business as usual.
I did not feel that a hearing conducted via Zoom was in any way different from one conducted physically “face-to-face”. Ultimately, you are still making the same arguments as you would if you were physically present before a judge. Some lawyers may consider it important to be able to present your arguments face-to-face before a judge (or judicial officer) so that you may better observe and then respond to judge’s cues. I am not sure whether this is of such critical importance in the context of an interlocutory application, certainly to the point whereby it would prevail over other considerations.
We have to bear in mind that in my case, I was involved in a hearing where the Judge was deciding an interlocutory application. The situation and considerations are very different if we are asking whether trials should be conducted virtually. The nuance of witness demeanour may be lost if examination is done through a screen – this affects both the examiner as well as the Judge.
Seeing that virtual hearings might be here to stay for a while given the new measures, what are your thoughts about it?
S: Overall, I think the teething pains are outweighed by the potential benefits of remote hearings. Like all productivity measures, they require appropriate application to be effective. From what little I’ve seen so far, things seem to be on the right track, and it’s just a matter of time before lawyers grow more comfortable with the process to reduce any perceived obstacles and make remote hearings as effective as hearings in person. I hope that virtual hearings are here to stay!
J: Being able to conduct virtual hearings (as opposed to just pre-trial conferences which deal mainly with the administrative conduct of the case) does call into question why it is even necessary to have physical hearings in the first place. There is force in the argument that examination of witnesses should still be carried out in-person. Other than that, if the objective is for both law firms and the courts to reach higher levels of efficiency in terms of costs and time (and both are inextricably linked), conducting hearings virtually seems to be a move in the right direction.
Nonetheless, to apprehend the utility of virtual hearings, there are also other factors to consider. Does conducting virtual hearings enhance access to justice? Such a factor may be more relevant in other jurisdictions where physical access to the courts present real difficulties (e.g. where there is a lack of physical infrastructure that facilitates travel or where the litigants may not have the means to travel but still have internet access). If access to justice remains pegged to having some kind of legal representation, then having a hearing conducted virtually may not exactly enhance access to justice, particularly to individuals who still cannot afford legal representation.
Another factor to consider is whether conducting hearings virtually would have an impact on the quality of our legal services. This is linked with being efficient – if lawyers spend less time being physically on the go and can spend more time preparing for the hearing, then theoretically lawyers are able to better prepare for their hearings. But this may in another way (and through no fault of the lawyers who are diligent) translate to greater costs for the client. All this begs a more fundamental question whenever there is a question about quality of legal services – is it better to deliver quality at all costs or varying quality at varying costs.
No doubt there is a lot of room for meaningful discussion.
Author’s Afternote: The rapid adoption of technology by the courts during this period heralds a new dawn in which the legal and judicial world is inseparable from technology. The Honourable the Chief Justice Sundaresh Menon has in fact been an advocate of technology adoption, having spoken several times over the years about the importance of the legal profession adopting the use of technology in its day to day work. Most recently, at the Mass Call 2019, the Chief Justice explicitly mentioned that “the future of the legal profession, like that of our nation, hangs on the ability and willingness of its members to reskill and relearn“, and that lawyers should strive to achieve “an effective and nuanced understanding of the interface between technology and the law“. He stressed on the urgency for legal practitioners to be “agile learners”, and to expand their field of knowledge beyond simply knowing the law, because in today’s day and age, to be an effective lawyer requires much more than that.
To conclude, as the Chief Justice fittingly pointed out, “we inhabit a different age, and it will take much more than it used to, to rightfully retain the privilege of that appellation“. COVID-19 may just have been the catalyst which has led to the legal profession incorporating technology for court hearings en masse, but we hope that this will just be the beginning of greater technological use moving forward.