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Zooming into Court: Digitalisation of Australian Courts
What area(s) of practice does this episode consider? | Talitha discusses the increasingly digital nature of practice in Australian courts and digital advocacy. |
Why is this topic relevant? | Renowned legal futurist, Richard Susskind, once wrote: “For tomorrow’s lawyers, appearance in physical courtrooms may become a rarity. Virtual appearances will become the norm, and new presentational and advocacy skills will be required. I am not suggesting that virtual courtrooms will be pervasive in the short or medium term. But they will become commonplace in due course, I have little doubt.” Even before the COVID-19 pandemic, there was a growing trend toward conducting the less contentious work of courts remotely and digitally, and using technology to conduct in-person hearings more efficiently. Online registries, online courts, and e-courts promoted quick, efficient and less costly alternatives. However, as a result of the pandemic, digital advocacy has become a necessity – at least for now. As remote advocacy becomes more and more mainstream, advocates must learn how to adapt their advocacy and presentation styles to thrive in a new digital forum. |
What are the main points? | If embraced, technology can support the just, quick and cheap resolution of disputes being the overriding purpose of the court in civil proceedings (section 56(1) of the Civil Procedure Act 2005 NSW). It can be used to create efficiencies, convenience and flexibility, in addition to improving access to justice. According to the Organisation for Economic Cooperation and Development, only 46% of people live under a system of established law, with access to lawyers and the courts. For many, engaging a lawyer or resolving a dispute through the court costs too much and takes too long, resulting in many people being aware of a legal need but being unwilling to seek advice. Technology, including the implementation of online courts, could improve access to justice. As with any sort of change, the digitalisation of court processes has both pros and cons depending on the hat you wear. For judges, court staff, advocates and lawyers, we are forced to learn and adopt new processes. Whereas those we represent, being those seeking a resolution through the legal system, are provided with a process that is arguably more efficient which reduces both the costs and time it takes to achieve a resolution. When appearing in a new court or list, knowing the traditions and unwritten rules of the court is important to both being comfortable and confident in appearing as an advocate. Familiar cultural artefacts like the dress code, robing, and when to sit, stand and bow have tripped up some advocates recently. Advocates may feel more comfortable appearing by reading the guidance on remote appearances published by each of the respective courts and having technology set up and tested beforehand – a test run of the microphone, speakers and internet connection ahead of any scheduled listing is recommended. Whilst courts have published guidance from their respective chief judges throughout the COVID-19 pandemic, in the future we can expect practice notes that give detailed directions on remote appearances. |
What are the practical takeaways? | Tips for lawyers and advocates:
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Show notes | Richard Susskind, Tomorrow’s Lawyers, (Oxford University Press, 2013). Richard Susskind, Online Courts and the Future of Justice, (Oxford University Press, 2019). Justice Allsop’s lecture ‘Technology and the Future of the Courts’ |
David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Just a quick note before we begin, the episode of Hearsay you’re about to listen to was recorded in the midst of the coronavirus crisis and as a result of social distancing measures we had to conduct this interview over remote technology such as Zoom or Google Meet, the audio quality might be a little different than what you were expecting. Still we think it’s pretty good in the circumstances and we hope you enjoy the episode. Joining us here on Hearsay today to talk about the increasingly digital nature of Australian courts is Talitha Fishburn a barrister at Wardell Chambers. Thanks for joining us. |
Talitha Fishburn: | Thanks very much David it’s a pleasure to be with you and to be joining the conversation by digital means. |
DT:
2:00 | Yes for our listeners at home I’m speaking to Talitha over Zoom as I’m sure all of you have been conducting your meetings over the past five weeks. It’s been working very well for us and it’s fitting because we’re going to be talking today about the way barristers and solicitors and everyone involved in the litigation process have been using tools like Zoom and other platforms to conduct their advocacy and the work of the court. But even before coronavirus hit, there was an increasing preference for doing more of the court’s work digitally, wasn’t there? For example the online registry introduced in New South Wales and the e-registry introduced in Federal Court, and the online court introduced in some levels of the New South Wales court system. TIP: The NSW online registry is a secure service that allows practitioners to file court documents and conduct case management remotely. Practitioners can access court-sealed documents and court orders can occur in real time from any office. Once registered a practitioner can login and manage a range of court matters including requests for preliminary matters, defence call-overs, pretrial reviews and registrar corporations directions amongst others. The court also allows subpoena production to be dealt with online and for access orders to be made online, all of which significantly reduces the need for short, non-contentious appearances. |
TF:
3:00
4:00 | I’ve been in the legal profession for 15 years and 8 of them have been at the Bar and if we go back to say eight years ago when I was first a reader, a lot of the work that the junior barristers and readers would obtain would be directions hearings, simple applications and in any one day, particularly a Friday when the lists were particularly active and busy, you might have three or four directions hearings. Sometimes you might have seven and it was just a boon if they were in the one court complex because obviously you’d be able to juggle that load. And increasingly from those days there has been a diminution in the frequency of in-person court appearances. And I have a distinct recollection actually of the Tuesday list back in 2012 which was presided over by a registrar and this was a family provision list and it was absolutely chockers and the general court hours would be from say ten to four…well we would be leaving the court precinct at say 5:30 some afternoons because it was just so busy and I think something like 90% of the listings in the Supreme Court were family provision oriented. |
DT: | Wow. |
TF:
5:00
6:00 | So you can imagine that this one list which is dedicated to this area which started at two o’clock in the afternoon would take several hours to get through and indeed it’s now moved to the judicial list which happens on Friday with Justice Hallen and it tends to take the whole day, but yeah it’s certainly a different ball game that we’re playing with nowadays as advocates and it’s not a daily occurrence where you expecting to be going to court certainly for the more preliminary type matters and directive type applications. I think there’s still an exception if there’s a proper contest, but the courts are certainly encouraging practitioners to reach consent wherever possible and if there’s consent and co-operation between the parties it’s the sort of thing that is definitely more amenable to a digital form of transition. I think it’s something that we are all still getting used to. We can probably see the long term benefits of it, but it’s still challenging for some practitioners and I think it does require a lot of organization behind the scenes so back in the day if there was….I feel like I’m so ancient saying “back in the day” but I’m really not, it’s just that the technology has been moving with such pace, but say 5 to 8 years ago you’d be at the directions hearing, you probably would have got a call from a solicitor the day before or maybe even the morning in the case of a fairly simple directions hearing and if there was some sort of issue with the directions you’re seeking you’d make a quick call and you’d clarify things and it was all done in the context of that particular occasion in the court, whereas now with the online situation I think it calls for a degree of engagement with the issues prior to the deadline of when orders need to be made and arguably that’s an effective way for the issues in dispute to be to be narrowed and for the issues which remain disputed issues, to be narrowed and to be somehow managed in a sensible, time efficient way. So I think we’re going in the right direction but it does feel like it’s a little bit of a transition period at the moment. |
DT:
7:00 | Certainly when the online court was first introduced in New South Wales the purpose of the online court was obviously to achieve the just quick and cheap resolution of litigation, supports, and certainly my experience has been that, parties do have to engage with a directions hearing earlier than the day of the directions hearing now, if only because the practice note that requires it and some registrars have been very diligent in ensuring that that requirement is followed. Have you seen in some of the matters that you’re working on whether case management does benefit from online court where the matters are being handled in a more efficient way? |
TF:
8:00
9:00
10:00 | Yes I think across the board each it has been beneficial and I think from the parties’ perspective it’s certainly a less expensive exercise. If things are done in a remote fashion it doesn’t require the appearance sometimes for the directions hearing it might be a team of lawyers who attend with the barrister which is necessarily a more expensive exercise than one person being able to facilitate sensible orders with the other side on behalf of their clients. I think it is beneficial from that perspective and there’s always the option if things need to be fleshed out, you know in person, for that to take place but I think insofar as the simple timetable matters and a lot of the time with directions hearings it shouldn’t be controversial matters. Those things can be dealt with effectively so that the real value from engaging with lawyers and barristers can be for the more controversial issues which might need to be ventilated in a courtroom environment. I think in terms of benefits for the courts I don’t have the mind of the registrar, but if I was to step into a particular paradigm I think it would be incredibly difficult at least from a transitional perspective for that individual. So instead of being able to very readily ask questions of counsel and solicitors when they are appearing before him or her, they need to engage with multiple emails so for the parties themselves it might be a series of just a couple of emails back and forth, but for that registrar they’re manning quite a sizeable list and it’s that one person who has to have that engagement with multiple parties over multiple matters so I think for that one individual it’s possibly quite difficult, but they seem to be managing and they’ve certainly embraced parties becoming familiar with the practice notes and adhering to the times and time frames so that it’s manageable for everyone. So yeah in my experience it has been beneficial and I think the main thing is that we get to an understanding of what is not in dispute much quicker than we otherwise would. Things like timetable directions no longer have to be a Mount Everest event, it just becomes business as usual and we can be sensible about it so I think that’s actually really heartening. I think it’s heartening for the legal profession and I think from the clients perspective it’s excellent. The matters are handled well. |
DT: | You certainly see fewer contested directions hearings about whether an adjournment should be 3 weeks or 4. |
TF: | Yes that’s right and you know that’s not the fight that we should be having. It’s really not. I mean the fight itself might take a week. |
DT: | You did touch on one possible drawback through the move to a more digital mode of dealing with directions and that’s experience for younger advocates. |
TF: | Yes. |
DT: 11:00 | It was a primary way to develop some low risk experience, back in the day as you said. |
TF: | Yeah absolutely. |
DT: | And some of that’s dwindling. Where do you think young advocates are going to get that experience now? |
TF:
12:00
13:00 | David that’s a great question and just in terms of the experience that you would get, yes it’s a low risk, it gets you in front of the court and not just that, but it allows you to sort of see the other practitioners around you and to recognise them, to have a chat with them and certainly the barristers I now recognise who are, not from my immediate intake or not from my immediate matters or my chambers, are the ones that just incidentally I happened to bump into in these courts where you’d have to wait around for quite some time before your matter got listed and yeah I suppose in terms of collegiality that’s something that we will have to strive to achieve through other means, rather than the in person directions hearing context. But in terms of how advocates get their experience, if they’re newcomers, I think it might be engagement with the reality that some of what we do now is say work from a paper, so it might be submissions based work and it’s just a realisation that to serve the interests of the parties and to be a proper officer of the Court we need to practice in a way that facilitates those particular duties and it might just be that we need to hone our written work and then it could be a case of if someone’s a reader coming to the bar, it might be that they have to be particularly proactive in seeking mentoring opportunities with their tutors or with other people who are barristers with trials and hearings which they can follow. I mean it’s not the case that applications no longer exist or that hearings don’t exist, I think it’s just the diminution, it’s been a funnelling of matters so I think they just they need to seize the opportunities when they can and seek to shadow other barristers if it’s a more sophisticated application that’s taking place and in which they are not briefed, I guess it’s better than nothing but yeah it is what it is and I think that we can’t be resentful for the diminution of those opportunities. We just need to acknowledge that it’s in the interests of the parties and interests of justice and we are facilitating that for that purpose. |
DT:
14:00 | That’s ultimately our paramount duty. TIP: Now the duty that I’m referring to here is the rule encapsulated in rule 3 of the Solicitors Conduct Rules and rule 4A of the Barristers Conduct Rules. Each of which provide that lawyers of whatever stripe owe their paramount duty to the Court and the administration of justice, which prevails to the extent of any inconsistency. These rules codify a long-standing, overriding duty at common law to the administration of justice. Dealing with more matters online obviously means that more matters are being dealt with on written submissions or on the papers, as you mentioned earlier, and that is an opportunity for young barristers or or any advocate to hone their written advocacy skills. How does written advocacy differ from oral advocacy? How does making an application on written submissions alone differ from making an application at an oral hearing? And what are the skills that you really need to focus on to succeed in an application on the papers? |
TF:
15:00
16:00
17:00
18:00
19:00 | On the papers you need to absolutely preempt what the salient issues are going to be. Whereas if it’s in court obviously you’re going to be prepared and you’re going to think about all the potential scenarios that might unfold depending on a course that the judicial officer wants to take. But you’re somewhat at the whim of the judicial officer when it’s an in court appearance and it might be the case that you’re absolutely prepared and the judge or the registrar, doesn’t see any issue and is prepared to make the orders. Doesn’t need too much comfort. It could be the opposite of that situation where you’re asked a whole series of questions and it’s a very arduous application, so in that scenario you are coming to court with a degree of uncertainty and it’s sometimes the judicial officer who has great control ultimately over the content which is submitted. I think the difference between that and written advocacy is that you really need to assert your control from the first sentence that you take in writing, and you can’t wait for the helpful question to prompt you in the right direction. You need to take ownership of what you say the salient issues are, and you need to persuade whoever it is for that to occur. And it could also be that you’re anticipating issues that the other side might raise and it’s a judgment call and two whether you commit to that as an outline of submissions or whether you take the opportunity to put it in as a reply if it is something that’s raised. So I think it’s a different strategy. I think it’s also the issue that you never quite know when the reader of the submissions will be looking at the documents. Is it first thing in the morning, is it late at night. You don’t know what propensity for patience the person might have. Have they looked at ten other things before yours or is it the first thing they’re looking at that particular day and they approach it with fresh eyes. So I would tend to err on the side of just stating the absolute facts and to be as plain as possible and to respect that person’s reading zone, I suppose you would say, by absolutely just presenting the essentials. So that’s the approach that I take and it’s and it’s also…so for example we had an application that you’d ordinarily have done in person recently in the commercial list and it was a matter with about 7 different parties and multiple defendants, cross claims etc, and it was an application for security for costs. Some of the parties were individuals, some were corporations, so it was a minefield of different legal issues that were at play. Because of the recent pandemic situation we were ordered to proceed off the papers and not only proceed off the papers, but to commit what we felt we wanted to say within 2 pages. So there was a page limit that was ascribed and I was thinking I can’t even put my name down in two pages let alone traverse all the issues of all these cross-claims, all these pleadings that you know went for pages and pages and and folders of evidence and certainly, we were for the defendants, so we were the moving parties but certainly for the plaintiffs to confront of a situation where arguably they were going to have to to front up with hundreds of thousands of dollars in security and potentially a stay of their proceedings and all that was to be decided upon two pages. What sort of pressure is that for the author of that submission! But the interesting thing is that I actually very much respect the order of the court that it be 2 pages because a security for costs application, sure it can have multiple issues, but that area of the law is quite settled you don’t need to rehash what the principles are. You just need to be discerning in how you deal with the arguments in that distilled fashion of 2 pages and across all the parties having regards to their 2 pages, I think everyone did an excellent job of really focusing on the issues and then when it was for the judge to decide, it was not a burdensome task and if that judge is receiving multiple such submissions from multiple parties in multiple matters, how unruly would it be for that individual to deal with an arbitrary page length. Some barristers might commit to a couple of pages, some might commit to 50 pages. It’s just too unruly. So I think that what they said was a sensible convention to apply. |
DT: | It’s a real art and skill to distill your submissions into a short submission than to as you say rehash tried principles. |
TF: 20:00 | Yeah tried principles and to really focus on what is essential for your client’s position and to say that in a way that is the most persuasive and equally trying to anticipate something that you might need to counter from the other side. So yeah, I think there are definitely different skill sets involved and it’s not a cop out I think to say that you know junior barristers need to work on their written submissions and their written advocacy because even with the hearings in person, the usual course is for there to be an outline of solutions or closing submissions which are in writing so it’s a skill that in any case is always going to be utilised I think. |
DT: | I suppose in the same way that there was decades ago a move away from oral evidence in chief to written evidence in chief. |
TF: | Yes. |
DT: | We’re smilarly experiencing a change from oral submissions as the primary mode of delivery submissions to written submissions as the primary way of written submissions. |
TF: 21:00 | Yeah I think that’s a great analogy, a great example of things becoming more paper based, but I can’t imagine the court saying in relation to evidence it can only be 2 pages long, but maybe that’s something that that will happen and it will probably be a direction to the delights of everyone involved. |
DT: | Yeah well sometimes when an affidavit that has a heading background and then 40 paragraphs under the background heading I wonder if that direction could be made. |
TF: | Yes. |
DT: | You mentioned earlier that the security of costs application you were making was being conducted on the papers as a result of the covid 19 pandemic… personally I’ve already run a couple of contested hearings using Zoom or on teleconferences. Have you had any experience with these remote hearings yet? |
TF: 22:00
23:00
24:00
| Yes, yes, I’ve also had some contested hearings which have been entirely remote and when I say remote, remote in that no person within the same room except I believe the court officer and the judge. Also we had a witness who was based in Western Sydney. My instructing solicitors were based in Victoria and they were in their homes participating. I was in my place in Sydney and the other side were based in Queensland in different environments up there, so we were quite a challenge I think on the system or a bit of a test case to see if all these different parties from interstate calling from weird and wonderful locations could be effectively hosted and I’m pleased to say that not only did we have a fully contested hearing, but we even got a judgment by the online means. So it happened and it was one of the first ones that happened with Covid19. The judge had said to us at the start of our hearing I don’t know how this is going to proceed, we might need to go to telephone if we can’t all, you know, hear each other effectively, we’re just going to have to be plastic and adaptable to the best that we can. He said I’ve only done a couple of each so far and they were a bit hit and miss, but let’s just try the best we can. TIP: What Talitha’s talking about here was predicted by Richard Suskind in his book ‘Tomorrow’s Lawyers’ where he said: ‘For tomorrow’s lawyers, appearance in physical courtrooms may become a rarity. Virtual appearances will become the norm, and new presentational and advocacy skills will be required. I am not suggesting that virtual courtrooms will be pervasive in the short or medium term. But they will become commonplace in due course, I have little doubt.’ Now whilst appearances in physical courtrooms are not yet a rarity, and appearances virtually are hardly commonplace, it’s hard to deny the cost and efficiency benefits of dealing with many matters, especially non-contentious ones, online. So it was good and I’ve got to say that the use of a platform called Slack was really helpful, and Slack is a bit like WhatsApp so my solicitors and our team we were all participating on a Slack conversation and it meant that if someone had an issue to raise to me, or if I wanted to ask a question about something, we could do that effectively and discreetly so that I wasn’t going to be disturbed if the judge was asking me questions. And it was much more effective than say dealing with emails or looking at text etc, so definitely endorse the use of Slack. It was very effective and I’ve never used it prior to this and it was really user friendly so that was great. And you can send documents and all sorts of things. I think it’s probably akin to WhatsApp which is perhaps more widely understood in the market. |
DT: | We use documents as well so if you send a Word document for example it has an extract of it in the chat function doesn’t it? |
TF: 25:00
| Yes that’s right. So I’d looked at the practice note of, this is in the District Court before the appearance just to ensure that do I need my robes or don’t I? I felt a bit silly having to don the robes in the context of my study at home but, I did check a practice note and it definitely said practitioners or barristers were not expected to robe. Okay, great. Okay don’t need to do that but I’ll put on a black jacket and be as discreet as possible, but my opponent calling in from Queensland was fully robed notwithstanding the changed circumstances so it was that lovely juxtaposition between old and new. |
DT: | Yeah well it was the right forum for you to prevail I suppose. |
TF: 26:00
| Yes, and another funny thing so I’ve actually got a standing up at home and I decided to be standing for the whole two days just because I’m a bit used to being on my feet and you are just able to move around a bit more effectively and reach the documents etce if you’re standing, so I was standing the whole time and the client said to me afterwards, she said ‘oh I just didn’t understand why you weren’t rising each time the judge came on like the other person’ and I said ‘I was standing the whole time!’ My respect was such that I did not sit! |
DT: | For two days. |
TF: | For two days. |
DT:
27:00 | It’s funny those old habits are really hard to quash. I was appearing in the Supreme Court of Victoria and it was done through Zoom, and so everyone dialled in and you could see everyone pop up with their webcam as they came onto the call and so someone would come on with a jacket, but no tie and go ‘oh need to go get a tie’ and would sort of disappear out of their office to go get one, and then someone would come up without a jacket and say I have to get my jacket. |
TF:
| Yeah it is funny, some of those old habits and we still had post it notes even though we didn’t need post it notes. It was not as if I could pass them to anyone remotely, but there was a use for it so the opponent was like in the middle of his cross examination and something must have happened to his microphone and he didn’t know that that was happening and the judges like sir, sir we cannot hear you, Miss Fishburn can you somehow indicate to him that he needs to put his mic on? I said well he’s in Queensland, it’s a bit hard for me to get up there and tell him, but then I thought I’ll get a post it. So I put the post it up on the microphone, he saw it and thought ooh ooh yes must address that. So even that was a way around the solution. |
DT: | It’s quick thinking. |
TF: 28:00
29:00 | I can only say it was positive and certainly from the client’s perspective. We’d already had the matter adjourned a couple of times so they really wanted the matter to get on and they were going to be, I wouldn’t have said prejudiced if it didn’t go ahead because was ultimately a commercial matter, but there’s desirability in having finality and I think it’s a really great outcome that we were able to facilitate everything online. I’ve got to say that it did require the cooperation and patience of everyone, and court staff were excellent, and the judge was very amenable to just going with the process and I think it calls for that degree of co-operation because it’s new to all of us. Yeah but nothing didn’t work and people were thinking how’s the cross examination going to proceed you know, you won’t be able to see the witness. It’s like actually we can see the witness clearer than ever before. This is usually like 20 metres away. This time I can see the eyeballs. I can see the sweat perspiring. |
DT: | See if the camera starts to shiver with nerves. |
TF:
30:00 | This particular witness we had she had a religious icon behind her in her home study and the judge actually said ‘Madam will you be taking an oath or would you like to affirm?’ And she said definitely an oath and I’ve got my Bible with me. I keep it at all times. He said ‘I see that you have a religious icon behind you.’ I don’t know it somehow personalises the process a little bit more. Like even looking at you here with Zoom I can see that you are a great fan of Pelican, or Puffin books, as am I, you know you do get that, not that you expect the court process to be informal, but I think it’s just another way perhaps of gaining an insight into someone. |
DT: | Yeah. And I suppose it’s a humanising part of the technological process at a time when we probably need more reminding of our shared humanity. |
TF:
31:00
| Yes, but the endeavours people have taken have been remarkable. So one of my friends had a barrister she’s having a birthday on the weekend then she lives alone so you know the loneliness is arguably more amplified when you can’t go out at the moment. And she had this absolutely creative idea of inviting her friends to the ballet. So we’re going to be watching a prerecorded ballet thing with the Australian ballet company and we will be zooming together for drinks before the show and we’ll zoom together during interval, and yeah it’s not making up for having an actual party, a dinner party or something, but it’s still such a creative use of technology which I think you know two months ago before all this happened none of us would have imagined. It is like ironically somehow humanising and you know even in the meetings at the moment being able to have video technology, it’s actually meaning that I see people perhaps more than I would because we’re using videos rather than phones. So people don’t come in for conferences; it’s usually email or phone. But yeah the video I think it’s quite charming from the humanising perspective. |
DT: | Yeah I think it does seem to demystify, I wonder if it does at least, the court process a little that it is being conducted in a familiar place and using a familiar tool as we said we can use zoom for Supreme Court hearings or for a dinner with friends. |
TF: | Yeah that’s right yes. |
DT: 32:00 | Was it strange though not being in the same place as your witnesses for that hearing? I would think it would be quite unusual to not be with them immediately before the hearing. |
TF:
33:00
| David, it was strange and we spoke at length the day before so we had video conferencing, telephone calls, the day before and the morning of the hearing the same sort of thing. So the conferences that you’d expect to have with witnesses, solicitors, and the team, and the client, before proceeding to hearing we still did it, but we just did it with technology and arguably we were more prepared than we otherwise might be, because we were expecting there to be these terrible technological glitches and we wanted to be on our toes in case any of that happened, so no, I guess it felt a bit weird but we got through it and as I said this Slack platform that will using meant that we were interacting all day. Yeah absolutely all day. So I didn’t find a bad thing and I’ve heard similar things amongst my colleagues that they are finding it to be effective, so I don’t know if it’s a way of the future or if it’s just an interim measure during Covid, but you know we have the technology in place now there’s no reason really why it can’t proceed in this way, and I think they say rural practitioners why should they be you know, somewhat prejudiced by having to come to a regional centre if it can be arguably done in the same fashion but electronically. It’s gonna be cheaper for the parties and it might be more efficient. So yeah watch this space I suppose. |
DT:
34:00 | Yeah. It does require some other skills though, skills that you might not exercise in an in-person hearing. Certainly technological aptitude is one of them, but what are some of the other skills that you need to exercise in an online hearing that you wouldn’t in person? It sounds like with your experience with Slack and other tools that you’ve been using during the hearing, multitasking is actually a pretty important one. |
TF:
35:00 | Yeah I think the multitasking and I think having things set up in place before the hearing starts and I suppose you do that in court but you don’t want to be fumbling around with things because you don’t know exactly what the judge is going to be looking at if it’s online and so I just made sure everything was set up and even some online resources that I had, I made sure I had the rules in front of me I had the principle cases that I thought I’d need to rely upon readily at my disposal. I had all my subscriptions loaded up, so I suppose that with the way I tried to ameliorate some of the technological challenges that might have otherwise come my way, just making sure I was as organised as possible and most advocacy coaches say that the number one thing that you do is preparation no matter what the context is. I suppose this was just a preparation but in a digital sense in an online environment. I think one observation I’d make is that normally you’d be endeavouring to engage in eye contact and I’m a bit of a wander as you’ve probably noticed on the video. I don’t know where to look. |
DT: | Yeah it’s been strange but if you look at the person’s face you’re not actually making eye contact because the camera is obviously up here. |
TF: | Yeah so the lack of eye contact with a bit beguiling and I found that I was in a bit of a stream of consciousness because I was actually just looking at my cupboard door that was half ajar as I was making submissions instead of looking at the judge, but perhaps the judge was you know looking at a door that was ajar in the courtroom as well. I don’t know maybe we were all looking at ajar doors at the time. |
DT: | Maybe. |
TF: 36:00 | So, that was a bit of an adjustment and I think that it’s quite a difference from how things are done in person, yeah, but it’s not to say that you don’t scan the visuals you are taking in what the scene is, but you don’t know have that absolute immediacy with the eyeball to eyeball when its digital. |
DT: | It’s an interesting juxtaposition because we’ve talked about 3 environments in which a court might determine an issue. One is the one that we’re all familiar with an in person hearing, the other is determining the matter on the papers and the third is determining it online, and it sounds like on the papers there’s really no opportunity to understand the context or read the room as it were, and that opportunity is there when you’re online or in person, but it’s remarkably different in that there’s both some things you can pick up on that you couldn’t have in one scenario and things that you’ll miss in that scenario as well. |
TF: 37:00
38:00
39:00 | I actually found that the digital one was perhaps a bit more facilitative in that a few issues came up where we didn’t have some of the documents that the judge was interested in, it was just in relation to costs orders actually which sometimes get dealt with much after the piece. So we got judgment on the second day then it came into a question of costs and we were seeking a particular costs order and it required demonstrating what some of the expenses were. And the judge was very amenable to actually receiving the bill of costs and that’s something, that ordinarily as I said this would have been dealt with at a separate hearing down the track, but we still had an hour or so left and he was prepared to step down for 15 minutes, solicitors just needed to email those through to all the parties and to the court. He then looked at it on the spot and we were just all going off the one email and that sort of thing just can’t happen in person unless the solicitor has brought, you know, 10 copies of all the costs, bills of costs, in the matter for the last two years. Whereas this was just one email that needed to go around all the parties. Nothing needed to be printed. The judge was particularly interested in a couple of things, he then went to those pages. We were all on the same page and what could have otherwise taken a separate day or perhaps pages and pages of submissions, was dealt with in that one hour. So again from the client’s perspective and use of time, it was a fabulous facilitation I think by the judge and certainly with something that the courtroom was happy to embrace for everyone to sort of, I suppose be a little less formal than a court might ordinarily be in terms of communications to the associate. We wouldn’t ordinarily submit you know evidence in that way, or intended evidence, but the circumstances called for it and the dictates of justice called for it. So it’s just another example where I feel like I’m on a debate and I’m on the affirmative team for the digital arena. |
DT:
40:00 | It sounds as though that less formal approach to the hearing really produced some material efficiency gains. You know it actually was more just, more quick, more cheap or at least a more quick result. TIP: Now of course mine and Talitha’s references to a quick, cheap and just result are references to section 56 of the Civil Procedure Act 2005 which provides that the overriding purpose of the Act, as well as the rules of court as they apply to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Now when we talk about the just, quick and cheap resolution of the real issues in the proceedings, we tend to focus on the quick and the cheap. However, it’s important to remember what the High Court said in the State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 Dawson, Gaudron and McHugh JJ said: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim. However what Talitha is describing is not only a cheaper and quicker method of resolving issues in dispute, but one that doesn’t seem any less just than appearing physically. |
TF:
41:00
42:00 | Absolutely I think from all the parties’ perspective’s and the courts, it was embracing those case management considerations and putting it into practice. Why slave away preparing affidavits over something that can otherwise be dealt with quite effectively in the interests of justice? I think yeah this process although it’s an uncertain time, it’s really difficult economically particularly for some industries and some businesses in terms of lawyers and how we go about litigation and our court craft, I think it’s actually bringing to the floor new ways of practice, new ways of efficiencies, bringing to sharp focus what issues are the really important ones that contests over and how to have those contests. So I think I don’t have any experience with criminal law hearings and juries, but I think that’s an entirely different scenario. So unless a judge alone trial is to proceed, they’re effectively stopped mid action. Nothing can happen with those matters because it calls for the in person presence of at least 12 individuals, members of the jury, so unfortunately for those practitioners those matters can’t proceed equally. Having spoken to some of my criminal law colleagues they have noted that some of the matters are proceeding with sentencing, so I guess it’s focussing the attention on some of the parties in criminal law to work out whether they actually want to go ahead with a contested hearing or whether it is something that can be deal with by way of sentencing hearing alone. In the criminal law context it’s arguably another positive result for those individuals who wish to enter a plea. |
DT: | Yeah. I suppose in both civil and criminal matters although it is a very difficult time for everyone, it’s a time that’s teaching us a lot about the efficiencies and the inefficiencies of some of the received wisdom about how we practice. |
TF:
43:00 | Yes and we don’t know how long it’s going to be, so we’ve taken the approach of thinking it’s going to be maybe at least three to six months so we may as well be properly set up at home and do it properly so it’s not as if it’s just one weekend effort it’s something that had some real legs to it and that’s what makes me think that on balance there might at least be the option to continue with this down the track because so many of us have invested in taking his approach very seriously, not just necessarily for the short term. |
DT: | Yeah and also a good reason for advocates to brush up on their online advocacy skills. |
TF: | Yeah to rush through tech training absolutely, to get their stand up desks, to make sure they’ve got the latest software, speedy internet connections. |
DT: | Yeah absolutely. |
TF: | I’ve actually got a colleague in Chambers who doesn’t have a computer, and I’m not sure how his business is surviving in the digital age. |
DT: | Yeah. I hope he’s got one now. |
TF: 44:00 | Well I can’t chat to him because you can’t be emailing. I have to wait till I see him next. You know he does a lot of mediation so that practice is, you know doesn’t require a computer. Although having said that, a lot of mediations are happening remotely now. Not sure if you’ve had that experience? |
DT:
| I’m planning one presently to hold a mediation at sometime in the next six weeks and I imagine that will be online. |
TF: | Yeah and you know when you think about at mediations we’re often struggling to get venues where parties can be appropriately distanced if it’s a shuttle style mediation well digital means absolutely avail that opportunity . |
DT | Yeah yeah exactly. |
TF: | Why didn’t we think about this earlier? |
DT:
45:00 | Yeah exactly. It sounds like conducting a hearing online doesn’t just require particular advocacy skills that might not be exercised elsewhere, but it might also lend itself to a different style of advocacy. Of course we’ve known for a long time that different styles of advocacy lend themselves to different forums, that criminal lawyers have a very different style of advocacy than say a commercial equity lawyer, but what kind of advocacy styles really have you seen thrive in an online environment? |
TF:
46:00
47:00
48:00
49:00 | David I think and coming from the perspective of a woman I say that the digital arena is a bit of a leveling of the playing field. So it could be subliminal factors that play out in a real life scenario where you might have an advocate who is particularly robust in one’s physique. They might have a particularly voluminous voice. They might just be larger than life in some respect, either physically or psychologically or volume based, whereas I think when it comes to digital it’s a bit more of a clinical setting and I don’t think one can get away with being you know the person with the loudest voice in the room, or who has the biggest physique and you know you can somehow laud over others because of one’s physique. So it’s a great question and I think those classical advocacy styles that we’re all familiar with in a courtroom, you know looking very poised and very professional, and having a very clear voice, and particular posture and eliminating those annoying habits of flicking your pen or tugging on your robes, all those sorts of things that we hear about in advocacy training and coaching. Those things don’t have such a pivotal place I think in digital settings. So I think certainly voice and timing, those things are still essential. Ultimately it’s a medium that relies upon listening to the advocate as well as seeing the advocate. So clarity of voice I think is important and timing. And in a court environment I think it’s quite sacrosanct where the judge will be looking very carefully at the advocate and there’s no distraction. Whereas in an online environment you don’t necessarily know what else is happening. So I said for example I had my Slack messages coming through and it could be that the court officer is you know dealing with the judge about something so you don’t necessarily know what some of the other distractions might be. So I think that’s an important thing to remember for your advocacy but also how you’re going to stay on the page if you are subject to the distractions yourself and how you bring yourself back. So I still like to have a pen and paper in front of me and you know when the cross examination was happening of our witness I was avidly writing down things very much old school so that I had all my notes to go back in for any re-examination that was required. So I think that that didn’t differ, but I like the fact that with the online forum it is this equal playing ground and issues like ethnicity and gender and even age, those sorts of things which even if we try our best to be embracing diversity and not to be biased, I think it takes it takes so much to not be somehow at least subtly influenced by those subliminal factors. And I think that the online forum somehow managed to filter out some of those things which really shouldn’t play a part you know in our advocacy. So I think that’s good but then it really brings into focus well what is going to be noticed about me, it’s going to be my content and it’s going to be my delivery in terms of the clarity of voice, and I think the organisation of thought that has gone into the arguments that one’s making. So I think I’d just say that by way of distinction between the two styles the old style of being able to rattle one’s robes has no place in an online environment. It really comes down to distillation of thought and clarity of presentation. |
DT: | It’s yet another really encouraging aspect of online advocacy. |
TF: | I’m on team affirmative here so. |
DT: | Me too, I think certainly my limited experience with online hearing thus far has been very positive, but I’ve got a couple of motions coming up in the next couple of weeks so we’ll see how those go, but yeah my experience has been very positive in that it’s a lot easier to be well prepared and able to assist the court. |
TF: | Did you find it was a shorter application or did you find that it was longer? |
DT: | I found that it was shorter. I think you do get to the issues more quickly, or at least so far as my hearing was concerned. |
TF: | Yeah I agree, mine have been quite efficient in that respect. |
DT: 50:00 | I think it might be that maybe you don’t play for time so much while you’re waiting to find, while you’re waiting to find the right page in the trial book or or waiting to find the right paragraph of your authority. It’s just already there and all of this lost time with analogue you don’t have. |
TF: | That’s right. |
DT: | That’s all we have time for today, but Talitha Fishburn thanks so much for joining us on Hearsay! |
TF: | Thank you very much David Turner. |
DT: 51:00
| You’ve been listening to Hearsay The Legal Podcast. I’d like to thank Talitha Fishburn, barrister at Wardell Chambers for coming on the show. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD point is self-assessed, but we suggest this episode constitutes an activity in the professional skills field. If you’ve claimed 5 or more CPD points or more for audio content already this year, you may need to access our multimedia content to claim further points from listening to our podcast. Visit htlp.com.au for more information on claiming and tracking your points on our platform. I’d like to thank Tim Edmeades our producer, Kirti Kumar who researched this episode, Araceli Robledo who manages all of our marketing and me David Turner our interviewer. Hearsay is a project by Nicola Cosgrove and Chris Cruikshank, co-founders of Assured Legal Solutions, making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening. |
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