Many lawyers prefer remote hearings, and they shouldn’t be muted

Let’s be clear: the lord chief justice was not, in his message to the profession this week, demanding that lawyers dig out their smart clothes immediately and traipse back to the court next week.

Lord Burnett of Maldon made clear that remote and hybrid hearings will still ‘play their part’ in managing footfall in courtrooms in the coming weeks and months. The days of pretending to stare at other people on screen while you secretly look at yourself (we all do it) will continue for a little while yet.

But there was more than a hint from his update this week that business as usual is on the horizon, and that soon it will be ‘possible and desirable’ to increase attendance in person once it is safe and in the interests of justice. This will, he noted to my spellcheck’s dismay, be important to ‘maximise the thoroughput’ of work.

The trouble is, will everyone actually want to attend in person? Has anyone actually asked the lawyers, staff and most importantly clients whether they have benefitted from remote hearings? Are we just going to pretend this last year never happened and return to advocates travelling across the country for hearings that could be done just as easily through a screen? It appears we might.

The LCJ’s message seemed pretty downbeat on the effects of remote technology – mentioning unspecified advantages but stating (rightly) that it can slow down work. Perhaps there are efforts in the background to properly assess courts during Covid-19, but this message didn’t outline any.

This is not to be an unqualified cheerleader for remote technology, although as someone who reports on court cases it has been wonderful to have the ability to join trials without travelling to a physical building.

Many lawyers I speak to say they do not want a return to the pre-Covid way of working. Remote hearings save on travel time and cost, they offer participants the chance to do something while proceedings are delayed, and can increase efficiency if handled properly. Practitioners tell me that remote hearings have been especially useful in civil and family matters, with fewer cases vacated and clients happier as a result. The costs of paying for expert witnesses and representatives to travel have been saved, and in cases involving children with special educational needs for example, lawyers tell me parents have found it invaluable to be able to join proceedings without needing to find childcare.

It’s not perfect, and no-one is suggesting it is. But many will be disappointed at the suggestion that life must return to normal as soon as it is safe to do so.

The conversation about how regularly people will return to their old workplaces is one that all employers will need to have in the coming months (if they haven’t already). The trouble is the lord chief justice didn’t sound like he was starting a conversation, let alone beginning the kind of much wider consultation we should be having right now about what court business can and should stay online. In the coming months, the LCJ should be explaining why something needs doing in person rather than assuming it must be.