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…

2 thoughts on “running wild

  1. This is fascinating and I am almost (not quite!) sorry to be retired and out of the fray,

    It may have been here that I remarked months ago that there are cases where screens (the old-fashioned fabric sort, in fact curtains) are used so that Participant A cannot see but can hear Participant B – and that if A can see B electronically and B does not like it, well, too bad. A has the right to be cyber-present. Has that on practice been an issue?

    • Not an issue in the cases I have done so far – have had one where a party needed not to see the other so the not to be seen party was camera off throughout except during evidence, when the not to see-er dialled in for that part phone only.

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