Rachel Baker offers tips and guidance for litigants in person facing remote civil court hearings during the Covid-19 pandemic
Since March 2020 lawyers have been working in unprecedented circumstances. Our traditional (and some might say outdated!) ways of working have been pushed aside and our established routines have all but disappeared.
There are some advantages to this, not least of which is less time spent on travel to distant courts and hours spent waiting there for cases to be called on. However, the changes have brought their own challenges and all lawyers have had to adjust their practices and approaches to the unfolding situation.
It is quite natural, in such circumstances, for litigants in person to feel particularly daunted by the prospect of a remote hearing. In this post I will aim to share some “best practice” tips based on my experiences of participating in remote civil hearings. The “headline” to take away from it is that there is no need to fear remote hearings as long as you have prepared and practiced in advance.
For some years now courts have conducted telephone hearings for short matters where no live evidence is required. However, Covid-19 has brought about the closure of almost all court buildings with only a very small category of hearings continuing in a physical court room.
The court system has suddenly found itself forced to fast-track a move towards remote video hearings in order to uphold the vital role of administering justice. There have been mixed results and some initial confusion as to which “platform” might be used (Zoom was initially used but is now not allowed). Things are now reaching a more even keel and more consistent policies have been put in place. At the moment remote hearings are operating via Skype for Business or occasionally Microsoft Teams but there looks to be a move towards using something called Cloud Video Platform so watch this space!
Some hearings are being adjourned if there are concerns that a remote hearing will not allow fair access to justice for all parties and if you really do feel that you are unable to cope with a remote hearing you should make the court aware of this as soon as you receive notice of a remote hearing date. Do be aware, however, that the court can decide that the remote hearing should proceed and that if your case is adjourned until it can be heard in a physical court room you might have to wait for many, many months before it is dealt with.
There is some useful guidance from the Inns of Court and the courts themselves on remote hearings which you might find very helpful. Take a look at:
Tips & Tricks for Remote Hearings
– If your hearing is to be held remotely it will say so in the Notice of Hearing so do read it carefully. It should contain some information about the platform to be used (such as Skype for Business) and what arrangements are being made. The court will need to have a current email address for you so that it can send you an “invitation” to the hearing.
– Make sure that you make a clear note of the date and time and the arrangements for the hearing. Make sure that your emails are checked regularly and that your spam folder is checked too! The court is likely to have little sympathy for a litigant in person who misses their hearing because they forgot to read the email.
– When you get the emailed invitation to the hearing click on the link and make sure that it works and that you can download any necessary software (for instance, Skype for Business needs you to download a web app unless you already have a licence for the platform). It will usually be straightforward to get the required software onto whatever device you will be using for the hearing but if you leave it until 5 minutes before the hearing to find out there could be a problem! You will not have to pay for the software needed to join the hearing.
– If at all possible attend the hearing using a computer – be that a PC or Mac. Whilst you can attend a hearing by using a smartphone, remote hearings are quite intense and can go on for some time. Having a larger screen and a full keyboard should make the hearing easier for you.
– Technological issues may well occur just before or even during the hearing. Keep the email with the invitation details to hand so that you can easily re-join if you do get “kicked out”. It is also important to have a note of your opponent’s number in case there are technological problems. I had such issues during a recent hearing but texted my opponent to tell her what had happened, and she was able to explain to the Judge. Such forward thinking is necessary: if all else fails the court might be able to conduct the hearing by telephone but only if it can obtain your number.
– Dress formally for the hearing. Even though you might be in your bedroom this is still a court hearing and parties are expected to dress and act accordingly. Likewise, if at all possible position yourself somewhere with a neutral background (some platforms allow users to blur their backgrounds) and where you will not be interrupted by other people.
– Aim to log in to the hearing 20 minutes before the start time. This will give you ample time to deal with any immediate technological problems. Make sure your camera and microphone are on mute and remember that anyone else joining the remote hearing will be able to see and hear you unless you do this. Check that your computer is plugged in and has enough battery life: your hearing might only be listed for 30 minutes but could last a lot longer.
– Have a copy of the court papers with you or on a second screen if you need to use an electronic bundle. If you only have access to one screen you should not try and use an e-bundle unless there is really no other option (trying to locate a document amongst a bundle of 200 pages can be hard enough without having to jump between the hearing screen “tab” to the document one).
– Keep your mic on mute unless you are speaking but do remember to unmute it when you start to speak! Speak slowly and remember that there might be internet connection issues for other participants in the hearing and you might need to repeat yourself if they have not heard you. Look at your webcam / camera so that you are maintaining eye contact with everyone.
– Prepare what you want to say beforehand so that you have a note. If there are technical issues the last thing you will want is to have to try and remember what you were going to say on top of getting back into the hearing as quickly as possible. If you want to say something don’t just interrupt the Judge or your opponent. If you are worried the Judge will move on without letting you speak just raise your hand to indicate that you want to say something.
– Turn off other distractions such as alerts on your mobile phone. Remember that this is a court hearing and there should be no interruption. Also bear in mind that the hearing will be recorded by the court but that it is a contempt of court for you, or any other participant, to record it or take photos during it.
– Cooperation with your opponent before the hearing will help to flag up any possible technical issues and might narrow the issues. If nothing else, the Judge will be grateful to you and it will give a favourable impression.
– Be flexible and ready to adapt if things go wrong. In my last remote hearing the Judge could not access the hearing as he had planned but with everybody’s cooperation and perseverance the hearing was effective (albeit with a delayed start).
Ultimately, don’t panic if something does go wrong. Judges are, on the whole, understanding that litigants in person are not necessarily used to the technology and that an already daunting experience might be made even harder for you. Judges are themselves getting used to this new way of working and in my experience they are dealing with technological problems with good humour and patience.
If you have taken the time to practice and prepare then your hearing should go smoothly. Even if there are problems, the work you put in before the hearing will help you to sort those problems out and should minimise panic on your part.
However, if you do decide that a remote hearing is too much for you to manage then it is always possible to instruct a direct access barrister to represent you. Contact our clerks using our simple online form or call them on 01273 810011 and they will be pleased to discuss options and costs with you.