So, here we all are, and the Bar is having to adjust to almost every type of hearing now being conducted remotely; whether by telephone or video conferencing facility. Here at Landmark Chambers we will be writing a weekly blog dedicated to the Bar’s experiences of how these new arrangements, almost alien a few weeks ago, are working. We would be delighted if you wanted to email us or tweet us with your experiences – our contact details are below. We readily recognise that different types of hearing will throw up very different challenges.
So far, our experiences are relatively limited, so we are also going to concentrate this week on top tips for preparing for video and telephone hearings to become the new normal.
How to Prepare
First and foremost, if you are going to be conducting video hearings, download the video conferencing facility which your court/tribunal is going to use. Whether it is Skype for Business, Zoom or something else, it is important to have it up and running, as well as having spent the time familiarising yourself with it. Different courts and tribunals have issued guidance on what set up they are likely to use, so find out what you need. Have a test run and a practice.
Prepare a space in your home for your hearing. The most important thing is to have a quiet space where you won’t be interrupted and where there isn’t any outside noise. Tempting as though it may be to conduct hearings from your garden on a sunny day, this probably isn’t the optimum location for your judge actually being able to hear what you have to say. Also, choose the background carefully. In most cases, the video conference will only pick up your face and the space immediately around it (and some have a ‘blur my background’ facility), but in some cases the facility shows some of the background. This is not the time to disclose that you are actually in bed while you carry out the hearing. Try to have in the background some nice blank wall or bookshelf. Also – wear something smart. We very much doubt that the judge is going to insist on counsel being robed. But if everyone can see you on screen, then something smart (at least on your upper body) is sensible. However, feel free to also wear your PJ bottoms and novelty slippers and no one need ever know (just don’t stand up).
For phone hearings, you obviously just need a phone, but if this is feasible, have access to a second line. This is really useful if, for example, you are in the middle of a phone hearing but need to call a witness (who may be waiting for procedural issues to be dealt with, without being on the call) to ask them to dial in. Having access to two phones means that you don’t have to log off the hearing call completely. It is also very useful if your opponent is being very boring and you need to call Nando’s to send over your lunch.
For the phone you are using to dial in, using a landline can be more reliable, but if you use your mobile, make sure you do so where there is not intermittent reception with the risk of you being cut off.
Also make sure that you familiarise yourself with the ‘mute’ button on your phone, which will enable you to answer your front door, shout instructions at your children and definitely make a cup of tea during the course of your opponent’s still very boring submissions. More seriously, muting while you are not speaking (don’t forget to un-mute when you are speaking, or that will lead to some anxious moments for the judge) means that the hearing doesn’t have any background noise, such as the noise of you typing, while the judge is trying to hear the parties.
The beauty of this type of hearing is that you can conduct it from bed, in your pyjamas. But it is far less useful if there are witnesses, for example. So have a think in advance about whether your case is one which is suitable for a phone hearing. If you don’t think it is – say so in advance. The fact you will not meet witnesses prior to Court to raise final queries may also necessitate you organising a telephone conference prior to the hearing (or even the day before).
This Week’s Experiences
This week, we have had two colleagues carry out remote hearings; one by telephone and one by video link (a report of which by Ben Fullbrook is here). They both went relatively smoothly, although the telephone hearing in particular took longer than anticipated, because the judge took much longer to write notes than usual. It may be that in the absence of being to see gestures and facial expressions, it is harder for the court to quickly understand exactly what is being said. Give them time, and regularly check with them whether you are going too fast.
Both also report that the judges asked for feedback on whether it was felt that the hearing could have been improved. So don’t be shy – tell your judge if improvements could be made. We are all learning at this stage.
We anticipate many more remote hearings in the coming week. The Administrative Court appears to be asking whether parties will consent to a telephone hearing; the SEN Tribunal is listing cases by phone or video; more generally the Lord Chief Justice has stated the “default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely” (see here). See further here for an article by Tim Buley QC on the most recent developments in the Public Law courts.