Virtual courts and COVID-19: the future is now

While virtual legal proceedings have been around for years, it now looks like the legal community has finally adopted them as a permanent fixture. Two major trends have converged to make this possible. Firstly, intense global competition is driving law firms to search for cost efficiencies at every level. Lawyers are increasingly aware of the potentially significant cost and time efficiencies that can be achieved by holding arbitration or litigation proceedings virtually.

Secondly, while there was already a steady increase in the use of technology across law firms, this has now dramatically accelerated due to the 2019 novel coronavirus disease (COVID-19) pandemic. Traditionally slow to embrace technological innovation, the legal profession should be proud of the way that it has responded to this crisis. Indeed, many lawyers have been surprised by how successfully the legal industry has transitioned at scale to a more digital, remote working model. A great example of this transition has been the rapid adoption of virtual proceedings.

Benefits of virtual hearings

One obvious benefit of a virtual hearing is ensuring that a hearing can still proceed, even during a pandemic. In many cases, delaying proceedings is simply not an option for the parties who, above all, need a timely conclusion to their dispute. Preparing digitally will enable parties to have their day in court whether the circumstances allow that to be in person, hybrid or fully virtual. Another clear benefit of virtual hearings is the significant cost savings of eliminating or dramatically reducing the need for participants to travel. However, the move to virtual or hybrid proceedings can also create substantial, if less immediately obvious, efficiencies for legal teams as they prepare for arbitration or litigation hearings, and as they respond to developments during proceedings:

• Geographically dispersed legal teams will be able to work together ahead of the hearing in a private online workspace. Evidence and pleadings can be entirely digitised and centralised so that lawyers can quickly organise and mark up documents, discuss legal strategy, and sketch out arguments. This kind of remote collaboration creates significant efficiencies as lawyers can interact and share insights in real time, and it eliminates the inefficient and error-prone “paper shuffle” of assembling and distributing hard-copy hearing bundles. Crucially, it enhances both productivity and security by eliminating the need for team members to send key documents back and forth by email, post or courier.
• When a document or other piece of evidence is referred to during the hearing, every participant has immediate access to it on their screen, and legal teams are also able to access their own, private version of the document, with the notes and comments that they have made during the preparatory phase at their fingertips. Live hyperlinks enable instant on-screen connections between specific passages, documents and transcripts. The effective digital presentation of evidence makes proceedings more efficient, saving significant trial time.
• Real-time transcription in virtual proceedings means that participants can not only see the transcript as the case is being heard, hyperlinked to the evidence in real time, but can also search that transcript to make connections, refine their tactics, and respond to developments and opposing arguments quickly and decisively. Live private chat is an improved version of the post-it notes often passed between lawyers as the hearing proceeds.

Challenges to overcome

While virtual hearings and related services can offer lawyers and their clients several potential benefits, these benefits cannot be realised fully unless the technology is seamlessly deployed. If there are problems with audio or video tools, if there are organisational missteps, or if participants have not been adequately trained to use the tools, the result may be disruptive rather than helpful. This was true before the COVID-19 pandemic and it is equally true now. Lawyers and their clients must be able to focus exclusively on the substance of a hearing rather than the process of conducting it virtually. It is therefore essential that logistical and procedural challenges are addressed properly ahead of time, to ensure that they do not distract from the effectiveness of the hearing.

Choosing the right technology will be crucial. Technology and services providers may lack the relevant expertise or experience to work closely with the legal sector, and design solutions tailored to the unique challenges of different types of proceedings, different clients and different legal jurisdictions.

Providers must be flexible in their approach and facilitate a variety of technology configurations, including rigorous security protocols. They must understand how lawyers are accustomed to working so that they can adapt their solutions to accommodate existing habits and workflows. They must also understand and plan for some of the unique challenges that a virtual hearing presents. For example, what should happen if an arbitrator or a judge suddenly disappears from the screen, or if a participant using home broadband loses their connection. However, experienced providers will have the answers (see box “Opus 2 and virtual hearings”).