That Homer moment…

Just like Homer Simpson, we’ve all had that moment where we have let slip what we really think or someone has heard something that we never intended them to hear. Unlike Homer, most of us can distinguish between our own internal monologue and audible speech, but we do all sometimes slip up, sometimes with consequences far more serious than an episode of The Simpsons.

https://www.youtube.com/watch?v=F69DQupMiZM

(the above is a clip of the Homer moment that I’m thinking of, but my embed function is a bit glitchy so you may need to click and view it on the youtube site to watch).

The judgment of the Court of Appeal last week following a case in which the trial judge made comments about the mother during a break in her evidence, that unbeknownst to her were audible to participants via the video link is a pretty awful example of one such mistake. It will understandably evoke strong feelings and criticism. (You can read the judgment here : C (A Child) [2020] EWCA Civ 987 (24 July 2020)).

From a technological point of view this sort of mistake is an easy one to make, regardless of its grave consequences in this instance (the trial has had to abandoned 3 weeks in as the case now needs a fresh judge as the comments gave rise to an appearance of bias, and the child the case is about will inevitably suffer significant delay in decision making as a result – perhaps delay in reunification with a parent, perhaps delay in being placed with an adoptive family – either way, not good). In my own direct experience since remote working became the norm as a result of covid I can think of a number of similar errors (a guardian saying ‘oh shit’ loudly when her wifi was intermittently not working – which unfortunately was working at the moment she uttered the expletive, a colleague muttering the F word thinking he was muted but being heard by the judge, a party’s legal representative describing her client during a break as ‘not very bright’, when said client was still on the link, and advocate starting to take her client’s instructions during a break without muting herself). The frequency of these mistakes will reduce with familiarity and practice (and no doubt as a result of reading this judgment), but their consequences have potential to be significant, and to have profound effects on the confidence a party has in their lawyer, the judge or the process as a whole.

But in some ways these are not new issues at all. I’ve written before about the dubious practice of advocates holding audible discussions in public waiting areas (sometimes unavoidable, sometimes just careless), about the impression to the lay parties that is given when advocates huddle, chuckling at some unheard in-joke or engage in banter in the moments between the active parts of the hearing. And we’ve all had at least a near miss with the ‘reply all’ function on email. We were all quite capable of thoughtlessness, insensitivity or causing inadvertent hurt before lockdown happened. And sometimes, not often, a judge will openly say something pejorative about a party in a moment of frustration whilst the hearing is ongoing (and in such cases sometimes the decision is overturned on grounds of actual or apparent bias or a recusal application succeeds).

I want to write though about what this unfortunate overhearing of judicial comment does and does not signify. Because whilst we can all agree that the fact this happened is pretty awful for everyone concerned, and whilst I guess the content of what Mrs Justice Judd said will be shocking to non-lawyers, I am not sure it will be as shocking for lawyers or judges to hear – or at least it won’t be understood in quite the same way. And I thought it might help to explain why.

In his book The Modern Judge, Sir Mark Hedley (retired High Court Judge (Family Division), says

Our system…is so constructed that fallible judges hear and consider evidence often given by very fallible witnesses. We should not be surprised that getting to the truth is easier said than done…

The case is over, the witnesses have all been heard, the documents read and counsel listened to; All now eagerly await the coming judgement. Young barristers are often disappointed to discover that what is troubling the judge is not there learned submissions on the law, but the dispute over what actually happened. it is at this point that the criminal judge breathes a sigh of relief and passes the baton onto the jury. … In all other cases, however, the judge must decide the facts. How, then, do they go about it?…

Our tradition puts a significant emphasis on seeing and hearing the witnesses, thereby acknowledging that in decision-making there is a real impressionistic and intuitive element. I have certainly found that to be so, and it is not always easy for the judge to explain why one witness has been accepted rather than another, other than to say that, after reflection, the evidence of one is preferred to that of the other dash an explanation that the appellate courts have made clear is acceptable.

Later he says :

It is also the case that, whoever might know the actual truth of a particular fact, it will not be the judge. The combination of those factors – the need for decision, the fallibility of the process and the elusiveness of the truth – means that the whole process is very seriously and inevitably open to error: social justice is human, but would any society want it otherwise and, indeed, what alternative might there be? …

Trust is essential, but it must be deserved, too. There is a requirement on judges not only to act with integrity (and to be beyond corruption), but with a real understanding of the needs and aspirations of the society they serve. I go further. I do not think that the powers we have been discussing can be effectively exercised without an understanding of that society and a genuine empathy with humanity, even when it goes horribly wrong. The recluse and the cynic have no place on the bench. A humane understanding of people, a deep sympathy with human fallibility, and a desire for a just and ordered society must be indispensable features of the judiciary. It is the combination of humility in our approach to a case and confidence in deciding it that should be the hallmark of the judge. Only so can judges deserve, enjoy, and retain the trust of the society among whom we are authorised to exercise these extensive and remarkable discretionary powers.

Both Hedley J and Judd J are known for their kindness and humanity. I have no doubt but that Judd J will have been mortified upon finding out what had happened, which is why she was the one who raised the question of recusal, albeit that she later concluded having heard the request of some parties for her to continue that she should not recuse herself – until the Court of Appeal intervened.

On twitter when the judgment came out one person said, not unreasonably :

Judges – I thought, perhaps naively – are trained to actively work against those natural tendencies to decide one way or the other before the conclusion of the case. I don’t imagine it’s at all easy, but I thought that was the actual point of the job.

https://twitter.com/louisetickle/status/1286928266855690240?s=20

 

Of course they are trained in fair process and evaluation of evidence – although ‘judgecraft’ is an emerging discipline. But it would be a mistake to think that a judge’s brain works fundamentally any different than the rest of us, however clever they are. Judges are not like some set of electronic weighing scales where the screen is blank and the circuits inactive whilst the cradle is loaded with assorted facts – nothing happening until the load is complete and someone presses the power button. The judicial brain is processing information continuously throughout a trial, absorbing, calculating, recalculating, adjusting – because it is a human brain.

So. A judge IS trained to avoid reaching a firm conclusion before ALL the evidence has been read and heard and before it has been properly analysed and weighed. But that doesn’t mean that the judge has no impression of the evidence before the end of the case – a judge has to be very cautious about expressing those impressions by speech or other means during a trial, lest that gives an impression of bias or prejudging, and because in any event the impression at moment A may be quite overturned by subsequent evidence or an overview of the weight of the evidence at the end of the case – and thus may not be is in the judges’ mind at point B, and may be different again at the point of judgment.

Judges are trained hold their impressions in abeyance until all the evidence is in and they can reach a reasoned and balanced conclusion. That doesn’t – and couldn’t – mean they don’t form impressions, provisional views along the way. But judges don’t generally express those en route because those views may change and evolve – and it’s an important part of the trial process that they should do so where the evidence points in a different direction. A fair judicial process is one of continual evaluation of evidence, adjusting over the course of a trial.

Judges are specifically cautioned against delivering a decision before they have fully considered their reasons – precisely because a judge can be clear in her mind that she is going to do X, but the process of analysing and setting out the evidence and applying the law can reveal that X was in fact the wrong answer – and thus the decision will be Y. Thus the judge will evaluate how much weight to attach to perhaps a strong subjective impression of a witness as against some more objective evidence – and the conclusion may not match the initial impression.

So, whilst Judd J’s overheard comments are rightly a recusal matter – because they were overheard and because people cannot be expected to put out of their minds what was said – the fact that she had formed some impressions by week three of the trial is not in itself surprising or unusual.

There are times when, to the experienced eye of lawyers at least, it is possible to discern which way the judicial wind is blowing – or at any rate to think one can predict from the judicial visage whether the wind is favourable or not. But such guesswork is often a subtle combination of prior knowledge of the individual judge and the lawyer’s ability to read the weight of the evidence, as it is to interpret the reactions, facial tics or soft behaviour of the judge as the individual case progresses. And in any event it is often proved wrong when judgment is delivered.

It is worth remembering also that there are times when, a judge will make a careful intervention to explore a particular point or to tentatively express a provisional view in order to ensure that all bases are covered or to help lawyers focus on the points which are likely to be useful to the court – to focus the evidence and questions on or away from a particular point and to avoid wasting time on points the judge has already understood. Such indications will always be carefully dressed with phrases such as ‘Of course I haven’t formed any concluded view on x but I’m not sure that this line of questioning is going to assist me’ or to a witness ‘Now Mrs Y I haven’t made any decisions at this stage but you told me xxx. Can you help me understand that?’

Those interventions are a sign of an active and engaged judicial brain, constantly chuntering away processes the inflow of information and trying to ensure all relevant questions are answered and irrelevant material is avoided – they are essential to case management and the trial process – and they are often a way of ensuring that a party is given a fair opportunity to address a concern that is forming in the judge’s mind before they reach a concluded view. However good a judge’s in-court poker face may be (and some are better than others), off the cuff expressions of frustration or doubt in the private of a judges’ chambers are in reality the flip side of that very necessary process, however unfortunate and upsetting their accidental broadcast may be. Even if not all judges express their thought processes verbally mid trial, those thought processes will be going on silently inside the judicial brain box, and the judge’s view of a particular witness or a parties case will ebb and flow.

Lawyers know about this process of ebb and flow too – a parent lawyer’s case is never so rosy looking as at the end of the Local Authority’s evidence, and it often takes a nosedive about five minutes after the client gets in the witness box. What looks like a strong case can crumble in seconds and the wind can turn chill very quickly. Lawyers too are constantly re-evaluating their prospects of success, re-evaluating their trial tactics and the emphasis they will take in questioning and submissions – the process is a mirror of that being undertaken by the judge. Neither lawyer nor judge can treat a case as static – a trial happens in real time, because human beings are not predictable and you never know what a witness will say or do. If live evidence did not inform the decision, what would be the point of a trial at all?

So, whilst the Court of Appeal in the specific case obviously had to conclude, in fairness to the family concerned, that a fresh judge was needed, we should perhaps in fairness acknowledge that the overheard words were likely to be a snapshot and an impression rather than a conclusion, however much they may have been felt as prejudicial and as if the judge had made her mind up. None of us can assess whether or not there was any justification in the judge’s thoughts and feelings at that moment, nor can we run the counter-factual to know if she would have softened her view further down the line. That is a futile exercise to an outsider, and my remarks are not really about the specific case as they are about the broader judicial exercise that this fits within.

I for one have no objection when a judge offers some carefully worded assistance to lawyers and parties about what issues are troubling them, which parts of the evidence they are struggling to understand or accept, and which matters they will need further help on – as long as it is made clear that the judge’s mind remains open to persuasion or change as further evidence and submissions are received. Inscrutable, poker faced judges who never intervene or give any clues are difficult tribunals to appear before – you don’t know where you are, and the advocate is never sure whether or not she is wasting her breath on a particular topic (whether because the judge has already got the point or is simply not going to take it), and is always worried she may be neglecting to cover some point that the judge needs help with. It makes the crafting of submissions acutely difficult, and can make for some unexpected results at the end of the day. It can make it difficult to manage expectations.

There we have it, my ponderings on the judicial process, prompted by Judd J’s massive clanger. I hope that for those not used to court process it might explain a little bit about what (I think) is going on behind the judge’s eyes as the trial progresses. And perhaps we might try to give all concerned the benefit of the open mindedness we also expect from our judges.

An office of one’s own…

It’s taken me almost two decades to get my own office. The fact that I now have one I think has shaped my experience of lockdown quite massively – and very much for the better.

I’ve been casting my mind back to my working spaces and practices over the years at the bar, since I was first called in 2002 and it really has been something of an evolution.

2002-2009 – London – shared room in chambers

When I was a very baby barrister in chambers in London everything was still in hard copy, and transported in wheeled suitcases (though suitcases were considered somewhat outre at the time and more air hostess than lawyer)…I travelled into London each day to go to court, returned to chambers to drop off papers, fax my backsheet to my instructing solicitor, collect my papers for the next day and prep them in my shared room before returning home with readied papers in my trolley, ready to take straight to whatever court I was appearing in the next day. I did all my work in chambers, and my papers were usually slender. I do recall the carting of large heavy suitcases up and down the staircases at Oxford Circus when heavily pregnant in 2008, so I must have begun by that stage to receive bigger briefs.

2009 – c2014? – Bristol – babies and hotdesks

I re-emerged from maternity leave in Bristol, joining a chambers which had no traditional shared rooms, and was largely open plan – with a mix of hot desks and pods, with the odd room with an actual door. Having spent 3 months not earning and having moved house right as the credit crunch hit I was skint, so I opted for the hot desk as it was cheaper. All my papers fitted nicely in my allocated cupboard and it was a good discipline to keep a clean desk. I spent little time in chambers and largely did a quick paper swap in chambers en route back from court and took my work straight home. I would have tea with the baby (later the kids) and start work again once they were in bed, usually with lever arch files spread across the sofa whilst watching Law & Order or CSI with one eye and reading my brief with the other (yes, I know they are rubbish, but they have the sort of narrative you can pick up at any point and the sort of predictable rhythm and arc which I found quite comforting). The house was cramped and cluttered, the dining room table never had room for files, and the sofa was the best available space. We’d bought the house we could afford, saying ‘it’s got room to extend so we can have an extra bedroom and an office one day’, but it was always one day and we were always broke. Often I’d fall asleep whilst putting the kids to bed, or even before, and my OH had strict instructions to wake me at 9pm to do my prep. I’d work till maybe midnight but never later. If I reached the weeping despair stage of prep I’d put myself to bed and set an alarm for 4am to finish it off (I have never been able to pull an all nighter).

2014? to 2018 – Bristol – little people and pods 

At some point, I’m not quite sure when, I decided I needed to spread out a little – I wanted my own space. I decided to upgrade to a pod, which meant my own space to leave as tidy or as messy as I liked (within reason), and a massive amount of cupboard space. By this time I was getting bigger bundles, more complicated cases, doing more travel and working away, and spending more time working in chambers – the kids were getting older, their bedtime was later, I found I couldn’t get home for tea reliably and by the time they were in bed and my sofa-office was free for use I wasn’t in any fit state to complete my prep, leading to many tearful nights – so I reverted to trying to get everything done before leaving work, and would often work later and arrive just before the kids were put to bed, occasionally after. I liked to be able to chat to people in chambers, to bounce ideas off them and solve problems with them – I liked the company. It did me good when highly stressed to vent and share. But I distracted both them and me and was not hugely productive (possibly also a product of stress). For every two hours spent in chambers I’d goof off for one of them. Which meant later home time.

As time went on I began to work more in chambers on a weekend, often a Sunday. I found I needed to work more on weekends and where I’d settled for a while into a routine of prepping as much as I could bear on a Friday night so I knew how long I’d need and could relax until Sunday evening when I finished off the prep, there was  battle for the sofa later and later on Fridays, and evenings were no longer a quiet time where I could find a space to concentrate. So I had to move back to daytime working. Those Sundays in chambers were more productive, and they meant that when I was home on the weekend I was really ‘there’, but they were also very blue days for me. And whilst they were a rarity for a while they became too common for a period, and the children would say ‘Will you be home this weekend, mummy?’.

Meanwhile, having spent almost a decade saying ‘we must get that extension’ we finally climbed out of the credit crunch hole we’d fallen in and built the thing. We spent 6 months living with my parents while it was done, and moved back in in November 2018. Around the same time I began the move to paperless working. Bye bye big bundles.

2018 to lockdown – big boys and a kitchen table

We’d built an office. But it was a concrete shell, with no heating, no carpet, bare plaster – and it was full of building materials and junk.

But, even without the office things were better : we had knocked through from the tiny cramped dining room to the new kitchen extension and because both children had their own room now the clutter was spread equably around the house. The dining table could be extended and cleared, and if I had a multi-file case I could spread it out and work, whilst looking out to the garden. I still worked on the sofa from time to time, because even though more often than not the sofa was occupied by the kids, who were commandeering the telly before bedtime I was able to sit with my laptop beside them quietly doing work that they were unable to see thanks to a privacy screen. I had a choice of locations though – chambers, office, sofa. It was a huge improvement.

But I still had no office. We were decorating other parts of the house in the first part of 2019 (we needed to sort out our bedroom and the bathrooms), and when the summer came we set to work on the garden. The office was forgotten, still full of leftover bathroom tiles, bags of cement, old boxes and bits of unused skirting board.

Lockdown – an aquarium

And then came lockdown.

Why the hell hadn’t we sorted out that office? Gah! I spent the first few weeks of lockdown on a trestle table in the living room with an assortment of extension cables and props to try and power and position my devices. I had a frozen shoulder which I was unable to get treated due to lockdown and which seemed to be made worse by sitting at a desk so I did the first three weeks standing, shifting from foot to foot continuously, dosed up on nurofen and spending each adjournment laid on a hot water bottle.

When the shoulder eased a little I got to decorating, and although I didn’t want to spend anything on office furniture when my income was up in the air, I knew that this was my chance to make my own space and I had to make it right. So I ordered a desk, a chair and a lamp and set to work. I spent hours sourcing the right coloured paint (at the start of lockdown you couldn’t get paint anywhere!) and pimped up my old ikea bookshelf by painting it deep blue. It took me a couple of weeks to paint it (but at the start of lockdown I had little else to do as hearings were being adjourned left, right and centre), and my husband has nicknamed it ‘the aquarium’ but it is my space and it is made to my specification. I ordered deep petrol green carpet tiles to cover the concrete floor, knowing that we’d never get anyone to come and fit carpet, and also knowing that at some point we’ll have to take it up to finish laying the underfloor heating we hadn’t got around to before lockdown. And so, since about the middle of April 2020, some 18 years after I started pupillage, I finally have my own office. My own space that I don’t share with anyone else (except when I’m not using it and other family members may then borrow it for a reasonable fee).

It has a comfy chair and a foot stool, a shelf with all my books, a desk that is beautiful and undulating and smooth and which calms me down when I stroke it. I have a wall papered with pages from old Weekly Law Reports that chambers were throwing out, and the rest of the room is a deep soothing blue. In one corner is all my knitting, sewing, crochet. In another is a tiny golden shelf that OH has been avoiding putting up since we moved in (Now I have my own room he can scarcely veto it). On it I have placed a plant (an African Violet) which I will undoubtedly kill in a very short space of time.

This room is where I now spend a lot of my time (although this evening I’m typing at the kitchen table looking out at the dusky garden as OH has been having a governor’s meeting and everyone else is watching Horrible Histories in the other room), and in it I am calm and focused and productive. The household has fallen into a rhythm – when the door is closed mummy is working and must not be interrupted. When mummy pops out to the kitchen for a break mid-hearing she is fair game for hugs once the kettle is switched on and she’s had a wee. If there is a crisis I get a whatsapp not a knock on the door. When I emerge there is a chorus of ‘are you done for the day’? to which I say ‘no darling, one more stint before we adjourn’ or ‘just one more witness, I think we’ll be done by four’. Sometimes I have lunch in the garden, some days I go for a run or a dog walk before or after court, things I rarely had time to do when commuting to and from chambers each day –  hours of precious daylight wasted on trains or in cars.

Sometimes I get up early to work or return to the office late at night to work. It is quiet and calm and I seem to manage it so much better than I ever did in chambers, getting thing done in the time they should take rather than everything taking twice as long because I’m distracted : miserable thinking about when I could leave, and everything I had to do before I could, and what I was missing, and how long the journey back would be… Sometimes I sit in the comfy chair in the corner of my office, with my feet up, doing some crochet or sitting quietly and reflecting, or writing my to do list. I don’t have to hide in my bedroom or the bathroom or go for a walk to get away from the kids. I can just take myself away to my office. It’s not a man cave or a shed, but in truth if performs a similar function (though I try not to spend TOO much time in there, I only shut the door when I really need not to be disturbed, and I try and let others in the family use it for a solitary space for homework or meetings when they need it).

The working week at the moment is a relentless sequence of different video meetings – hearings or conferences or advocates meetings with other lawyers, mostly working from home. One cannot help but look at the backdrop – is it blurred out, is it sanitised, is it a bedroom, a walk in wardrobe, a spare room with a cot, someone’s commandeered living room or kitchen? And I think about how lucky I am to have this room – and also how lucky I am to have a family outside the room who more often than not will have plated me up some lunch or tea for when I emerge or who rush up with outstretched arms at every coffee break. There may be days or cases when that switch from the subject matter of my cases to my own family’s face jars, but so far it has just been a balm.

The longer that lockdown has gone on the more adjusted to it I have become. I have given notice on my pod in chambers, and as soon as I can I will collect my clutter from chambers and cram it in my aquarium. But what I have realised too is that I have advantages over others. Not everyone has their own home office – it took me nearly 20 years to achieve it. Not everyone is yet comfortable working paperlessly. Not everyone has support from their family at home – both support in meeting their own needs and in caring for their children. If my children had been younger and less responsive to instructions or if I had been a single parent – even a super blue office would not have saved me, I would have drowned in my aquarium. There will be many single parents out there who are still trying to juggle spaghetti hoops, tantrums and cbeebies and constant interruptions – and many junior colleagues out there balancing their single screen on a dressing table in the bedroom – and I am in awe at how they do it and how they have kept it up throughout lockdown. Having an office of my own has enabled me to swim rather than sink. Having a second adult to share the load and some regular human company has kept me afloat.

Not only is my office a privilege that many of my colleagues do not enjoy, it is also a private space that many of the parties to litigation do not have available to them either. The parents in my cases are not switching from one world to another when the court adjourns for a comfort break as I switch from talking about some other family to my own. They are moving through the same rooms where the events in the case happened – the kitchen where the children were injured, the bedroom where that punch was thrown, the bathroom where that overdose was taken – in the next room are the very children and family members who are being discussed by the court. These parents often spend the hearing very alone or unable to find the privacy and the peace and quiet they need to focus. In the last little while we have learnt ways to make working from home and remote court hearings so much more effective than they were, and more manageable for all involved,  but nobody should be listening to evidence about their parenting or watching a judge deliver life changing decisions about their children on a tiny hand held screen, or from a shed or a car. And nobody should expect to be able to work from home to the best of their potential, and to keep it up day in and day out unless they have adequate space in which to do it.

In normal times the courtroom offers that privacy, that separation, that clean quiet space to focus on the task at hand. Not having such a space can be a disadvantage to the lawyers working to give their best simultaneously to their clients and to their own families. A room of one’s own matters very much.

running wild

We’ve reached that stage in the summer where everything is a bit out of control, like a lanky teenager on a growth spurt, not quite sure how to control his limbs, which are flopping and drooping everywhere you want to walk. The footpaths are narrower, as runners and walkers have to dodge the lurching stinging nettles either side as they pass. Our pear tree’s limbs are weighed down with pears. They are just teasing too (the pears off our tree always taste awful). The runner beans have gone crackers and are waving mournfully at the sky, with little red flags peeking over the top of the greenhouse. The border looks like it’s been dragged through a hedge backwards. The tomato plants are suddenly covered in fruit, and the peas have pods. The wildness continues indoors : The actual almost-teenager has hair covering his eyes and has declared he is never having it cut, even when he can…The wishes-he-was-still-a-hippy-teenager 50 something is muttering about growing his silver locks. 10 looks like a mad scientist and I am hanging on in there, holding out for a haircut next week…The dog is the best groomed amongst us.

Meanwhile, as the heatwave drew to an end and the rain set in I have been in my home office, staring at a screen – day in, and day out. It’s been something of a trial marathon. And it’s not over yet, though the premature collapse of my ten dayer this week, has given me a bit of welcome respite (we made it to day 6 before it all got complicated). Back to it next week though with another 5 dayer, and more after that. The summer will be gone before I know it…I’ve booked out the last 2 weeks of August for RnR. I know I need to store up some positivity for the long months ahead up until Xmas. Going back to normal is not going to be quick or easy.

Much as I have watched the changing garden and local landscape change day by day, so I’ve also watched the changing of the remote justice landscape and my own growth* as a remote advocate. *for ‘growth’ think : runner bean shoot reaching out blindly and grabbing tight to whatever the hell it touches for dear survival. Whilst my husband has adopted a somewhat experimental trial and error approach to growing veg this year I’ve been doing the same inside with remote advocacy.

Whilst I’m not holding myself out as the Monty Don of remote trial advocacy, I do have a few random observations – things that have stood out to me and which I have banked for future use.

Firstly – shock horror – some litigants prefer remote hearings – not all, but some. For some it is a challenge and a barrier and a poor substitute for ‘real’ justice. But I was struck by the comment of one lay party in one of my cases that she preferred being on the video call than coming in to court – because it was only on the video screen that she could see everybody’s face. I’ve written before about the exclusionary experience of being at the back of court, only able to see the backs of those speaking to the judge. That was something I’d noticed as a legal blogger, and had realised would also apply to the lay parties – and yet it still hadn’t occurred to me that this was a specific advantage of a remote hearing. It’s more face to face than a ‘face to face’ hearing (providing of course everyone has a functioning screen where people’s faces are bigger than a postage stamp).

In fact, as an advocate I’ve found the ability to keep an eye on everyone simultaneously (subject to the limitations of gallery view) really rather useful. In some hearings I’ve been able to pin one particular person whose reactions in real time are most illuminating for me as an advocate and no doubt also to the judge (though what I also know is that in a real courtroom the judge always sees much going on behind the advocates that the lawyers are oblivious to!). In other hearings I’ve gained clues from a party’s background that has informed my questioning (you’d be surprised what people leave on show in their bedrooms). I confess this feels complicated, intrusive. But its information freely offered up – most are perspicacious enough to tidy up and offer a relatively blank canvas against which to appear. Some seem positively stage managed.

In fact, there is also an advantage of being able to see one’s opponents, clients, the judge on screen – in a real trial most often the focus is on the judge’s reactions – but the amateur dramatics or unconscious tics of your opponent down the row are often unseen. On the screen they are obvious – and beware, the smallest flourish, eye roll, pulled face seems to have far greater impact – not always the impact that is intended. A poker face is so very important (also when swearing audibly at your opponent or at some technical irritant do check you are REALLY on mute). The one place where I have found it useful to deploy a scrunched up face is where the speaker suddenly starts slurring or freezes – the pained expression from all those involved usually stops them in their tracks as they realise their wifi is having a moment. And then they can resume when our faces have straightened.

Platforms. This of course matters as much as the brand of compost you choose. I’ve now got some experience of trial work on Zoom, Teams and SfB (so far not CVP). Without doubt Zoom is far superior, but with it comes the fact that HMCTS are allergic to it and won’t go near the recording (I’ve written about the problems that causes here). The screen sharing function on zoom was a vital component in keeping one very witness heavy trial on timetable – whilst most witnesses appearing had the relevant documents at their fingertips, any delay with lost documents or difficulties navigating was quickly sorted with a spot of screen sharing. This can be done on Teams and SfB if the settings are right, but its much more clonky (teams doesn’t share directly to pdf expert). I wish that HMCTS would drop their objection to supporting hearings run by zoom. It would make everyone’s life so much easier…I really don’t understand the objection now that Zoom have upped their game on the security front. In fact I think its more secure than teams – so far several teams hearings I’ve joined have allowed all participants ‘admit’ privileges, which is surprising.

Zoom also seems to be much more stable as a platform than any of the others. SfB seems to be beset with a habit of kicking people out or hanging up, and my SfB trial had to be conducted largely with all cameras off bar the judge, the witness and the questioning advocate (which was quite nice in that I was able to lounge about and slurp tea, but also meant that it was not immediately apparent if someone had been booted out and was unable to hear – our saviour here was a a WhatsApp group between advocates).

My early cross platform problems with microphones intermittently not working (a mac thing – a huge stressor in the early days of lockdown) seem to have been solved with a combination of regular daily shut downs and ensuring that before each platform is launched the settings are manually changed to give permission to use the mic and camera exclusively to that platform (which causes a couple of minutes delay when switching between different platforms, but a small price to pay).

And what about the advocacy?

Well, I think I’m over the rabbit in the headlights effect that I think we all initially suffered from – talking to our own screen, not quite clear if you could be heard, self conscious, out of practice – worrying the kids would burst in. Doing advocacy this way now seems pretty normal. More than ever there is a need to be organised, concise, to keep to time – but in truth that is a good discipline and one which probably does me no harm.

Overall I’ve found that cross examining by video link is more manageable than I would have predicted. I do still think that there will be types of cross examination that will be less effective over a link, but I haven’t had a case so far where in the end, I’ve felt it has been a disaster because of me being remote from the witness and the judge. In fact, I’ve managed to conduct some pretty effective cross examination, if I do say so myself.

In fact, rather surprisingly, I’ve found that over-talking is less of an issue than in a real live court hearing. I have not heard the familiar refrains ‘please wait for the question’ or ‘Mr [Smith], once again if you just wait for the question we’ll get this done much more quickly’ a single time since lockdown. I think its because the witness and advocate are trying to avoid the over-talking that comes with video platforms, and the result is that witnesses across the board seem better able to wait until there is a pause before responding – that urgent butting in to answer the question they have anticipated seems all but gone. Surprising, but welcome. Perhaps also its because questioning is more focused, I don’t know. Perhaps also it’s because somehow the video platform is (quite literally, compared to a tiered courtroom) a leveller – perhaps the very visible cooperation needed to ensure all are able to participate fully, and the regular and explicit judicial verbalisation of the importance of fairness have combined to reduce the defensiveness and anxiety of witnesses? I’d be interested to hear if others also recognise this phenomenon and where they think it comes from.

I think that where cross examination style needs to be adapted is around timing and witness control – as I say above witness control at its most basic seems oddly to be less of an issue than it sometimes is, but getting a witness to wait till you’ve finished the question is only one aspect of witness control. Using silence and pausing for various purposes is more difficult on a link – some advocates rely more heavily on this than I do. I expect that jury advocacy and cross examination is much more of a challenge over a video link than it is where an advocate’s task is to persuade a single judge.

I’ve also been thinking a lot about the increasingly obvious divergence of views as between senior judges about the extent to which witness demeanour matters. This split has been made more apparent by the current circumstances, but its not a new issue – I’ve written before about Gestmin, but these issues take on a particular significance where decisions are being made about whether or not to hold a hybrid or face to face hearing. It’s clear that some judges set little store by demeanour, whilst others still consider it an important part of the overall jigsaw. I tend to the view that people’s real time reactions during a trial (including but not limited to during their formal evidence) can be illuminating, but that it is important not to rely too heavily on what may be either a product of the environment or skilled manipulation. What I’ve come to appreciate however, is that those reactions can be observed quite well via a video link – again, providing the person in question is on screen and can be viewed alongside the person speaking / asking the questions. My understanding of CVP (from the training rather than actual trial experience) is that this is NOT currently possible with CVP because only one person can be pinned, which seems to me to be a serious limitation. As a care practitioner, I have some first hand experience of the fact that people may reveal more via demeanour and reactions during a hearing than they might in a face to face hearing, because their advocate is less able to manage them (for example by shushing them, shooting a steely glare or asking for a break when it looks like the client is about to blow).

There are a number of consequences of people giving evidence from their own home – apart from the technological challenges, and difficulties for some of finding somewhere private (I’ve had parties join from their car, their sister’s shed, their works van on a building site), there is something of the formality of things which can sometimes be lost. One witness appeared in a vest laid horizontally along a sofa with the ipad propped up on the coffee table. That said, most witnesses have appeared to treat the giving of the affirmation and their evidence generally with appropriate solemnity – and I think that judges have got better at both reminding them of the fact this is a real court hearing AND reassuring them that they understand its stressful giving evidence.

What else? Well, I’ve discovered that the dictation function on word is quite useful if you want to keep a note of the evidence whilst rummaging on your other device for a lost page reference. It isn’t perfect, but is a pretty good means of keeping a note when your hands are full (though obviously it doesn’t differentiate between speakers or incorporate any punctuation or line breaks) – but it won’t work whilst you are using any other window on the same device. AND you either need to on mute or find the hidden setting to turn off the loud ‘ping’ that goes off when it starts and stops!

Having been nominated chief screen sharing guru during one trial, I found that I was unable to continue typing my notes whilst sharing (with zoom if you move away from the shared window the sharing pauses), and I also could not run dictation in the background as it auto pauses when you are using another app. Irritatingly, switching devices didn’t work – the dictate function isn’t on the ipad version of word and the screen sharing on an ipad doesn’t work either. Anyway, that is a work in progress – I am resisting the idea I may need more than 2 screens…

Overall then, it’s going ok. Like the garden it needs constant attention, and there is something new to see every day – and it can all get out of hand pretty quickly. Whether or not it will all die down in the autumn like the garden will remains to be seen. I suspect our season of learning will last longer than the flowers in my garden. For now though, I’m glad to have the outdoors as a retreat…