Technological solution used
A few days before the trial was due to commence, Mr Justice Teare directed the parties to use their best efforts to accommodate the entire trial remotely, via video-conference. In ruling that way, the judge rejected an application from our opponents that the hearing be adjourned, which included their leading counsel’s prophecy that the proposed solution would be an “unmitigated disaster”. For strategic and forensic reasons, it was important for our client that the hearing be conducted as planned, not least because linked proceedings in other jurisdictions were waiting upon and directly impacted by this hearing. The approach taken by the judge on the adjournment application is in line with the English courts’ recently published guidance stating that, before agreeing to adjourn any hearing, parties shall use the available time to explore the possibility of conducting the hearing using technology.
Installing the technology
The claimants’ solicitors (from our side) submitted a proposal to the court and other parties which contained alternative options for several video-conferencing platforms. After practical discussions on technical aspects, the judge and parties landed on using Zoom in collaboration with dedicated IT helpdesk style support from IT consultants Sparq. The platform and necessary software were installed on both (i) IT systems within the relevant law firms’ offices and chambers and the court, and (ii) home systems, such as desktops, laptops and other personal devices. The judge had expressed reservations about having to use his Ministry of Justice supplied laptop, so to address this, the claimants provided the judge and his clerk with a Surface Pro laptop preloaded with the necessary software to access the platforms, and a microphone and camera, as well as with a monitor and cable to connect to the Surface Pro laptop. Tests were conducted prior to the start of trial to ensure the platform worked well in the various jurisdictions where the witnesses, experts, and lawyers were based. The role of the third party IT service provider (Sparq) in providing dedicated, full-time and immediate technical support throughout trial was important.
Using the technology at trial
The Zoom conference trial was attended by Mr Justice Teare, the clerk, parties’ leading and junior counsel, witnesses of fact, experts, interpreters, and transcribers – all of whom had the facility to speak to each other whilst in the trial. All were based in different locations worldwide, namely Kazakhstan, Belgium, the U.S., and England. Each of the participants was able to see and hear the others, with the participant who was speaking at any given time appearing, in essence, facing the camera and in close up. For anyone speaking, there was no escaping the camera! The parties and other legal representatives – including us – viewed the conference on a private livestream, accessible via an internet browser. The private link was limited to designated attendees (50 viewers maximum) in order to preserve the quality of the audio and video. This allowed us to watch and listen to the hearing live, without being heard or being seen on camera.
Members of the public, including media representatives and colleagues from Reed Smith and from the other law firms involved, viewed the trial on a public livestream via YouTube (also posted on the Cause List and the law firms’ websites). The Coronavirus Act 2020, passed the evening before the trial started, allows public livestream of remote hearings to ensure open access to justice (Practice Direction 51Y and Schedule 25 under Section 85A of the Coronavirus Act) provided the judge makes an order to this effect, which Mr Justice Teare did on the first morning. In addition, the trial was broadcasted live in Court 26 of the Rolls Building, but so far as we aware, no one was in that courtroom.
The video-conference was recorded for the transcribers and for the court. Real-time transcripts were available during the hearing, and daily transcripts were published on the solicitors’ websites. Soft copies of the trial bundle were made available on the participants’ laptops, and hard copies sent to each witness (and the judge) for remote use from their multiple locations.
Highlights and practical tips
The approach is obviously different to that of an in-person trial, with its own challenges and upsides.
Things that went well…
The technology worked very well. The picture was very clear (so clear that the Bombay Sapphire gin bottle (and cricket bat) in the far background of the opposing barrister’s study was fully visible). The audio was hardly at all affected by time lag. The ability to follow the proceedings was at least as good, if not better, than it might have been in a courtroom where views are often restricted, space for bundles limited, and it can sometimes be hard to hear the speaker. None of that was an issue during this virtual trial. Everything seemed smoother and simpler.
As noted above, the judge completely endorsed this view, commenting at the end of the hearing that it had been “most remarkable” and praising the cooperation that had enabled it to happen. Witnesses and counsels also made comments during the trial about the effectiveness of the technology.
The virtual trial enabled very interactive discussions, not only between counsels and testifying witnesses and experts, but also with the judge, who, on the last trial day, was very engaged in challenging the submissions being put to him, just as he would have been in a physical courtroom. The discomfort of leading counsel, in close up on the screen, was often very evident!
Everyone seemed at ease with the video-conferencing platform and features it offered. Dialogue was not obstructed because of this.
One of Zoom’s features is the ability for a speaker to share their screen with all other participants. This tool proved to be very useful when a document was being referred to, which would often be put on screen and highlighted for emphasis during the course of argument. Another feature that makes a big difference to the viewing experience and the ability to watch justice in action, is seeing the participant who is speaking at any given time appearing in close up in the video-conference. The other participants appear smaller when they do not speak, but we can still see them ‘in the room’ on the Zoom platform.
Cross-examination of witnesses and experts provided (as is usually the case) no little drama and entertainment. It was very easy to follow, because one could see both the questioner and the witness face on – which is not always the case. They could clearly be seen and be heard. In particular, their instinctive reactions could not be hidden, including the frustration of counsel when a witness performed well. All participants, whether private or public, could see the speakers as if they were in front of them – not with their backs turned and not from the back of a courtroom.
In order to share thoughts during the trial with the solicitor, counsel, and client teams, it is important to have an instant messaging platform in place, dedicated to that group and to that function. For us, this played an important role in being able to communicate very rapidly with counsel. It effectively replaced the post-it notes usually passed along in a courtroom.
As mentioned above, IT consultants from Sparq provided invaluable support during the trial (they were present throughout). There was a message box directly on the platform allowing you to contact them. Sparq also arranged the private and public livestream links. While Sparq was engaged as the third party service provider and additional fees had to be incurred as a result, it proved incredibly useful to have its team on board.
Things that went wrong and points to consider…
There were a handful of moments (during a five-day hearing!) when the image and audio were of lesser quality. But this was mainly due to counsel forgetting to switch their microphone to mute when shuffling through their papers and binders.
One of our experts required an interpreter. It was decided to use sequential, rather than simultaneous, interpretation. Counsel’s questions and the experts’ answers were translated into English/Russian after each had spoken. This resulted in the cross-examination of the witness being longer and more onerous, particularly for counsel, as there was little flow to the exchanges, but it would have been little different in a real courtroom. Although we have not tested this feature, we have been told that Zoom allows the host to assign to certain participants the role of interpreter. Those assigned as interpreters will see a different interface, intended to make switching channels easier. The remaining participants will be able to select their preferred audio channel from the Zoom menu. We understand that other practitioners have tested the system successfully with several language combinations interpreted in parallel. We would recommend looking into this further rather than going with sequential translation.
In addition, one has to be mindful of the different time zones involved in a virtual hearing of this type (in this case involving the U.S., Europe, and Kazakhstan) and to factor that into the proposed trial timetable. Even then, adjustments in the timetable may be needed, which could be harder to accommodate remotely. Our witnesses were based in Kazakhstan and had to give evidence at the end of their working day, lasting until their evening. Our client’s legal team had some late nights watching the hearing remotely. It is also advisable to ensure the witnesses and experts are fully set up to give oral evidence from their different locations, in terms of both the IT aspects and physical support from someone who can assist with the bundles of documents (e.g., a member of the parties’ legal teams or someone with knowledge of the case).
Finally, witness security was dealt with by asking each witness, at the start of their testimony, who else was physically present in the room and by clarifying that the witness would not receive inappropriate assistance (i.e., assistance aside from showing the documents in the bundle). In addition to being sworn in, witnesses were also reminded of the prohibition on discussing their evidence with anyone during the breaks. Given the effect of being on screen in close up, it would be very evident if a witness was looking elsewhere for answers or assistance.
All in all, while there were certainly challenges along the way, it is impressive that the English courts are committed to exploring the use of technology to maintain trials in the list where possible, and pursuing the open and accessible administration of civil justice. Mr Justice Teare countered any suggestion that parties should be expecting things not to happen. We hope that this approach will shape the way we, at Reed Smith, and the courts are likely to be operating from here on. Virtual hearings will not always fully replace in-person hearings, but they should certainly be on the radar of anyone who wishes to proceed with trial despite circumstances outside of their control.
Virtual hearings work; we should embrace them during and even after the COVID-19 lockdown. We believe the enforced change in approach is here to stay.
