Litigators, their clients and witnesses, and the courts continue to face the brave new world of virtual courtrooms and remote participation. As we adapt to this new style of working, it is likely to be an anxious time for many. In times like these, it always helps when someone else has dipped in their toes and confirmed the temperature of the water.

A recent remote commercial trial held in the UK provides a useful case study. Two of the law firms involved, Stewarts and Linklaters, have provided invaluable insight into the UK’s first fully-virtual trial: the logistical challenges, what worked – and didn’t – and the lessons gained from the experience.[i]

National Bank of Kazakhstan & ors v Bank Of New York Mellon & ors

In proceedings brought by various “Stati Parties” to enforce a Swedish arbitration award for breaches by the Republic of Kazakstan (RoK) of the Energy Charter Treaty, a Belgian court had made a protective garnishment order against the RoK. The central issue in the English Commercial Court was whether this order applied to $530 million held as cash deposits by the London branch of the Bank of New York Mellon in the name of the National Bank of Kazakhstan (Bank of K). The claimants, the Bank of K and RoK, were represented by Stewarts Law, while Linklaters represented the first defendant.[ii]

The trial had been set down for a seven-day hearing that was due to start in London on 23 March 2020. The case involved parties and witnesses from outside the UK who, pre-COVID-19, were expecting to travel to London and attend in person. However, on 19 March, with lockdown looking to be both inevitable and imminent, the defendants urgently sought an adjournment on the grounds that the absence of live witnesses and other technical issues meant that the court could not guarantee the fair disposal of the matter

The trial judge, Justice Tiere, although sympathetic to difficulties arising from the rapidly-changing circumstances, was not prepared to admit defeat. Earlier that day, the Lord Chief Justice had advised that hearings should proceed remotely wherever possible to ensure continuing access to justice,.[iii] Drawing on this guidance, Tiere J, approached the lockdown as a problem in search of a solution rather than an insurmountable obstacle. He adjourned the start date by two days to facilitate the technical arrangements needed before a fully remote trial could proceed.

Helpfully, the trial was able to be truncated to four days after non-contentious evidence was admitted as read. These time savings allowed the start of the trial to be put back a day and made room for a day’s technical rehearsal.

Remote participation by Zoom

The first key decision was to choose a video conferencing platform. The essential specifications of any such platform were that it be tried and tested, with proven infrastructure resilience and worldwide servers; that it could connect to a wide range of devices and operate through a browser; it had the ability to avoid latency; and that it came with skilled IT support.

Zoom was chosen because of its ability to connect multiple people via a simple web browser, to create an online space resembling a virtual courtroom and to allow dynamic conversations. Skype for Business was ruled out after Microsoft confirmed that it was not registering any new users. (Microsoft Teams does not appear to have been in the running). Other platforms had scale problems.

There were initial security misgivings around Zoom. However, evidence that Zoom had fixed security vulnerability within the application assuaged the most serious of these concerns. Also, its lack of end-to-end encryption and the risk of “zoom bombing” (where third parties attempt to join, uninvited) were of less consequence with a public trial. After the court raised specific concerns about the risk of unauthorised access to its server, the technicians supplied standalone iPad Pros to all active participants, thus ensuring that no devices connecting to Zoom were at risk of sharing any personal data.

Participating in the virtual trial

The trial started on 26 March and ended on 1 April 2020. The judge, court officials, transcribers and the lawyers all participated remotely from their homes. The witnesses and an interpreter participated remotely from their homes or offices.

The hearing livestreamed via YouTube (an option only made possible by a COVID-incentivised law change reversing a ban on the broadcasting of hearings), but a technical hitch meant that this service was not up and working until the second day. The claimants, who had also set up their own private screening service, offered this as a back-up option to other parties and interested media so that they could watch the whole trial, remotely and in real time.

According to Stewarts, their overseas clients were delighted with the livestreaming option as it enabled more of their people to follow the proceedings than would have been possible had they all needed to attend court in London.

Non-speaking lawyers also chose to watch via the live stream rather than connect via Zoom, so as to limit the platform to active participants only. This decision simplified the process and minimised the potential for bloopers caused by unmuted mikes or similar inadvertencies.

Managing technical hitches and glitches

Skilled IT technicians were engaged to project manage and provide support throughout the process.

The technical rehearsal sorted out issues like microphones cutting out and the position of any lighting that shone into the lens of the camera or transformed people into silhouettes.

Once the trial was underway, active participants had their audio-visual equipment screened by technicians in a “virtual testing room” before they were allowed to enter the courtroom via Zoom. This testing was done in a strict order (circulated the night before) to ensure that the judge was not kept waiting and the trial proceeded without delay.

Zoom’s tendency to silence one participant’s microphone when another person starts speaking proved problematic when the noise of shuffling papers cut into a witness’ answer. This issue was resolved by having questioning Counsel mute their microphones when not speaking.

There were also some internet connection problems, especially for witnesses outside the UK. The solution for some participants was a USB dongle with a SIM card that allowed for a 4G backup. Others were able to use their phones as a personal hotspot. Upon reflection, it was observed that wired connections might have been better than wireless ones.

Witnesses

One witness of fact and four foreign law experts gave evidence. All of the experts lived abroad, in different time zones. One expert required an interpreter, who also participated remotely via Zoom. Duelling microphones made simultaneous interpretation problematic so they opted for sequential interpretation.

The remote format emphasised the need for short questions and answers.

David Quest QC, who appeared for the claimants, was unfazed by having to cross examine witnesses remotely. Witnesses appearing by video-link is already fairly common in the UK and he perceived no great advantage in being in the same room as the witness he was cross examining.

Each witness was administered the oath remotely, with those confirmed at the start of giving evidence that they were not being assisted by anyone. The case raised no curly credibility issues that might have given concern about witnesses being unsupervised away from the courtroom. In another case that involved allegations of fraud or dishonesty, it may be more important to control a witness’ environment although, even then, a case would have to be made as to why the risk of impropriety would be accentuated simply because a witness does not appear in person.

Integrating the trial bundle

There was not enough time to get a sophisticated document platform up and running. Instead, the parties opted for both hard copies and simple pdf electronic copies. The judge was provided with a separate Surface Pro, a monitor and hard and soft copies of the trial bundle. Stewarts said that, in future, they would opt for a more robust electronic trial bundle.

This case was not particularly document heavy, which made a difference.  In another case, the size of the trial bundle may impact logistics although, given how frequently electronic bundles are used these days, is unlikely to be a standalone reason not to proceed remotely.

Other recommendations were that digital bundles be displayed in a separated browser and that participants have access to large-sized screens.

Managing direct communication

The claimants’ legal team and clients opted to communicate via WhatsApp as this app allows for instant messaging, is widely accessible and easy to install, and their chats could be exported and saved as records.  This decision earned a vote of confidence from their QC who said that he much preferred WhatsApp messages to the old method of hastily handwritten post-it notes.

Virtual trials - where to from here?

Both sets of lawyers were positive about the experience. David Quest QC predicts that travelling long distances for a trial may be a thing of the past, particularly when societies face the next biggest challenge, climate change. For longer hearings, it may still be more convenient to have in-person trials, but for shorter hearings, it is easier and cheaper to conduct from desks.

Ideally, remote facilities would be equipped with multiple screens, soundproofing and other acoustic treatment, along with high-quality microphones, cameras and photographic-standard lighting. Stewarts also foresee law firms investing in purpose-built virtual hearing rooms decked out in corporate backdrop logos.

Litigators will need to be nimble as they learn new skills & become proficient in using technology. They may also have to walk their clients and witnesses through these changes. Parties with little previous court experience may fare best (there is no need to unlearn what you haven’t yet learned) but be prepared for experienced expert and professional witnesses to find the going tough as they are forced to adapt.[iv]

Nikki Pender is a New Zealand barrister and founder of Legal Empowerment.