The Mountains of Instead

Clear, unscalable ahead

Rise the Mountains of Instead, 

From whose cold, cascading streams

None may drink except in dreams

Autumn Song-W H Auden

This year I have undertaken precisely two credit hire trials, both in person, in one representing an insurance company, and in the other representing a claimant. A pleasing symmetry has been maintained. Much of my credit hire work, since the pandemic and the first Lock Down has related to appeals, applications and advisory work upon various matters included in the smorgasbord known as credit hire.

However, there is every prospect that things will start to pick up and in particular I note that substantial numbers of credit hire trials are proceeding by video, whether that is Cloud Video Platform, or Skype or some other platform and even by telephone. Such a solution is only partial: courts, rightly in my view, will not list trials where interpreters are required, or where there are more than 3 witnesses.

Bundling can remain problematic, not only in respect of lawyers whose Adobe-Fu, may not be up to scratch, but also in relation to witnesses who may have to try to navigate a digital bundle with increasing desperation.

There remain concerns about transparency: how can you really know who is in the room with the witness, or whether they are receiving helpful hints n tips on their testimony, as they gaze dutifully into the screen?

Of even greater concern is the problem reported in the Family Courts, which I am sure bleeds through to all sorts of remote hearing, as to whether justice has really been seen and felt to be done, by the disconnection litigants may feel from a remote process: see for example this report here:

But as the nights darken and the days shorten, it is now readily apparent that remote advocacy is here to stay well into the spring of next year and may become even more prevalent, if the growing number of face-to-face hearings goes into reverse, as England and Wales enter a more restrictive regime to try to combat the Covid pandemic.

So how should remote advocacy be approached in principle? One of the books that I recommend to my pupils is The Devil’s Advocate by Iain Morley QC. The third edition is available in Kindle on the Amazon store at modest cost. It is a short polemic on advocacy, written primarily with the criminal practitioner in mind, but contains some excellent advice of more general application. The importance and significance of well polished shoes, is simply one of the more engaging details amongst a wealth of more significant points.

But that book has limited application to remote advocacy. It will not tell you to buy the best webcam that you can afford. It will not tell you, to light yourself appropriately with an LED ring positioned in front of your screen. It will not tell you how to manipulate your screen so that you can have an e-bundle and the judge juxtaposed. It will not remind you, that your computer should be wired into your router to ensure that you have a sufficiently fast internet connection, instead of being dependent on wireless.

And it will not explain to you, how you translate the techniques of persuasion that you may have utilised, as I have done for nearly a quarter of a century in credit hire trials, in the new normal, of a remote hearing. In essence, to reach a new and different level of effectiveness it is necessary to invent a new type of wheel.

With this in mind I was interested to see the Inns of Court College of Advocacy have published: Principles-for-Remote-Advocacy-1. It is a document well worth reading, as it is short and punchy and provokes thought about how you can best present a case, for your client’s benefit at the other end of a video call.

Of the various principles, two in particular I would endorse:

5. Make the best use of written argument

Ø Be aware that it is likely that rather more weight will fall on the written argument than it does in typical hearings.
Ø Use the written argument to provide a clear road-map of the key issues and how you expect to approach them.
Ø Use the written argument to provide a way of finding any key document, especially if you are dealing with a complex body of evidence. Recognise that it is harder to follow a remote presentation, and that the judge may well need an aide memoire that can be consulted before and after the hearing.
Ø Do not, however, be tempted to shoehorn a mass of material of secondary
importance into the written argument. If anything, this is even worse when the oral hearing is compressed, because it is likely to leave your written argument disconnected from your oral presentation.
Ø Give careful thought to which parts of the argument will require oral presentation or expansion, and how you are going to do that.
Ø Mark documents in arguments for ease by agreeing a key with the other side e.g. [1/1/1] = bundle 1, tab 1, page 1.

In my view every remote hearing, should have a written skeleton argument filed in advance of the hearing along with a properly bookmarked and hyperlinked ebundle: why would you not want to take the opportunity to double the impact of your case, by putting it in writing and putting it orally?

6. Be prepared, then be brief and to the point

Ø Your preparation needs to be more meticulous than it would be for a normal hearing. In a remote hearing, time is at a premium. Remote communication has less impact and less subtlety than face-to-face communication. Much of what follows is general good advice for advocacy, but the requirement is heightened for remote hearings.
Ø Write a more detailed script for submissions and cross-examination questions than you usually would.
Ø Anticipate questions that the judge is likely to raise, or points that your opponent may develop orally, and discuss them with your team in advance.
Ø For witness handling, make sure that your cross-examination is highly focussed on the main issues. Have clear objectives, and plan to achieve just those objectives. Expect the pace to be slower than you are used to. Do not rely on any cross examination technique that depends on high pace or pressure.
Ø When questioning a witness, keep questions short, make sure each is a single question, and use clear questioning cues to show when a question is finished. Avoid multiple questions. Avoid questions which are simply statements and depend on inflection.
Ø Witnesses must feel enabled to give their best evidence. Provided that the
technology functions properly and witnesses are given the same advice as other parties about presentation, sound and lighting, there is no empirical research to support the contention that vulnerable witnesses and children are less effective ‘online’ as opposed to being ‘seen’ by the court or tribunal. Please be reminded of the 20 Principles of Questioning vulnerable witnesses, available on the Inns of Court College of Advocacy website.
Ø Advocates must ensure that all witnesses are as comfortable as possible when giving evidence.
Ø Simplify your arguments as much as you possibly can, remembering that if you “lose the judge” you are less likely to notice that you have done so than you are in court.
Ø A lot of non-verbal communication (and aspects of “style”) are lost when working remotely. Concentrate on the substance.
Ø Brevity and precision are key. In the event that either sound or video quality is interrupted during a question or submission, repetition may be required, a process far easier to complete with succinct questions or submissions.
Ø Aim to present your case in a low-key courteous and measured way. Be careful not to have too much mental overload during a hearing.
Ø Be prepared for the fact that remotely-conducted hearings are more taxing than a conventional hearing. Do not be shy of asking for breaks.

Sensible advice, and principles that I have at the back of my mind when approaching yet another remote hearing.

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