Court advocacy in virtual hearings

Since COVID-19 related lockdown measures began in March 2020, courts and tribunals across Australia, and the advocates who practice in them, have either embraced, or been forced to embrace, the reality of virtual and remote advocacy.  The pandemic has catalysed a ‘new normal’ where virtual hearings are commonplace and legal professionals must enhance their skills to work effectively online.

Elizabeth Bishop, barrister at Ground Floor Wentworth Chambers, said in an article published by Clayton Utz that one of the greatest challenges of a virtual hearing is that it ‘diminishes the ability to engage with the judge with the same effectiveness otherwise available in a face to face hearing.’  Others, such as 7 Wentworth Selborne barrister Julie Granger, say that virtual courtrooms limit the ‘theatrics’ that come with traditional courtroom proceedings – which sounds good to us.

Although hearings may now take place in a very different physical environment than before, the basic principles of good advocacy still remain relevant in today’s online context; but in addition to those skills, additional ones are needed to maximise an advocate’s online presence (which work just as well for online meetings):

• use a background which is blank, or muted – your home library, or a work of art, can be distracting in the background.  If you can’t move your computer, use the background blurring feature in your videoconferencing software;
• Centre your face to the camera, so that the camera is neither looking up or down at you, and keep about a two-finger width distance between the top of your head and the edge of the screen;
• Look into the camera when speaking, rather than at the faces on the screen;
• Consider your lighting – in particular, you don’t want to be backlit and silhouetted, and ideally,  It may be worth investing in a desk lamp that will illuminate you from the front
• Don’t abandon hand gestures entirely, but avoid hand gestures which come between your face and the camera.

It’s also important to remember that in an online environment your ability to read social cues from people who aren’t speaking and centred on screen will be reduced, so you may want to consider using a chat app like Slack or WhatsApp to maintain good communication lines with your client and team during a hearing.

Whether the courts will utilise the benefits learnt from online court in a post-COVID context is yet to be seen, but we hope they do; online courts, in some respects, have increased access to justice for parties who no longer have the burden of having to travel for their hearings, particularly for those living in remote and regional areas.

To hear about general advocacy tips from a Supreme Court judge themselves, listen to Episode 1 of Hearsay ‘The View from the Bench – Tips for Aspiring Advocates’ with the Hon Justice Lucy McCallum.