News focus: Remote resolution – here to stay

The debate surrounding remote civil hearings, for serious injury cases at least, seems to ignore the reality that most claims are settled without trial. Resolution is found through a joint settlement meeting (JSM), which, pre-pandemic, was usually carried out in barristers’ chambers or a hotel room.

Social distancing restrictions put an abrupt end to such meetings, forcing lawyers and clients to conduct complex and often fraught negotiations on-screen. Multi-million-pound settlements are now being thrashed out through Zoom or Microsoft Teams. And while the remote format has raised several issues, most agree that remote JSMs are likely to be the default option in future.

‘Generally, they have worked well,’ said Katherine Pearce, managing associate of serious injury specialist Enable Law. ‘They are easier to arrange, involve less travel and our client can be in the comfortable, less intimidating environment of their own home. They also tend to be more focused, and offer less opportunities for grandstanding by counsel. It also gives an opportunity for more surreptitious monitoring of the other side’s reactions.’

Vicky Whitney, a partner at claimant firm CFG Law, said remote JSMs have been efficient and productive, although there are drawbacks.

‘They have a tendency to last longer, with negotiations continuing late into the afternoon when people would usually have been thinking of travelling home,’ she said. ‘This can be draining for a claimant and it’s especially relevant in cases where we’re dealing with, for example, a brain-injured client who needs support to enable them to be involved in the decision-making process as much as possible. That can be difficult remotely.’

The process has largely followed the same pattern as in-person meetings, albeit with different parties’ rooms replaced by a virtual equivalent – one room for the claimant’s team, one for the defendant’s, and a third for the legal representatives to negotiate. Knocks at the door are replaced by emails or text messages between barristers. Claimants, often with specific needs and completely unfamiliar with the legal process, can appear from their home and accompanied by friends and family.

Chris Gutteridge, a barrister at Exchange Chambers, said: ‘All feedback I have had from clients about remote JSMs has been positive. The vast majority of people are now familiar with the technology (Zoom in particular) and can use it without worry.

‘I represent claimants whose injuries can make travel (or prolonged sitting, for example) difficult – and so removing that requirement eases them through the day. Some of the anxiety generated by the process dissipates if the claimant is in familiar surroundings.’

For the claimant lawyer, there are extra challenges: the technology has to be appropriate for technophobe clients and a test run a few days in advance is an essential step. Managing expectations is also a tougher task when face-to-face meetings are not possible.

On the defendant side, where the client is generally less vulnerable, there is little prospect of going back to pre-Covid ways in most cases.

Ciaran Garnett, partner at Plexus Law, said the process has been refined in the past year so clients and counsel join a single Teams or Zoom call with breakout rooms. WhatsApp groups are opened for counsel to text the group with ‘ready to restart the call’ or if there is a point to raise.

‘My insurer clients and commercial lay clients much prefer remote JSMs,’ said Garnett. ‘Costs-wise, there is no need to hire three-plus rooms in the venue and pay travel expenses plus time spent travelling. For my part – and for the file handler, counsel and lay client, too – being able to continue with other work in the downtime between discussions is perhaps the greatest benefit.’

Every lawyer – claimant and defendant – contacted by the Gazette agreed that the loss of personal relationships with clients has been keenly felt. Pearce said: ‘One of the downsides is the lack of in-person support, and it can also make the final “event” feel like less of an achievement. It is often the last significant contact with the client in the case, which can be difficult.’

Claimant representatives said the injured person is likely to have the final say about whether their JSM is in-person. Said Whitney: ‘It should be the client’s choice. I’d have no objection to a remote JSM if it was in the client’s best interests and they were happy for it to be remote. For some claims, however, face-to-face JSMs remain far more suitable.’