Pupils are having a particularly weird time of it. Ours started Second Six in early March, just as the virus started hitting hard. So Courtney Marsden‘s first experience of real-world advocacy was distinctly different from mine…
I have spent a lot of time imagining what my first ever trial would be like. I imagined how it would feel to sign my name on my first real-life skeleton, to sit in a courtroom as “Counsel”. But I never imagined that my first trial would be on the day the country went into lockdown. I never imagined that my first trial would be a video hearing.
On Monday, I appeared in the First-tier Tribunal (Special Educational Needs and Disability). Twelve participants took part in the video hearing. Eleven of these participated by video link, and one via telephone.
At the start of the hearing, the judge spoke of the importance of the parties feeling that justice was being done, even in these unusual circumstances. This was facilitated by everyone’s patience. We operated on basic “classroom” rules such as “make sure only one person is speaking at a time” and “if necessary put your hand up before you speak”. [Ed: proof positive that against preconceptions barristers can behave like grown-ups…] This allowed both parties to put their case just as they would have done if the hearing had taken place in person.
New difficulties inevitably arise when a trial is conducted by video link. There can be delays in transmitting audio, background noise can overshadow someone’s answer to a question, or (horrifyingly) the internet may drop out when you are in the middle of examining a witness. It is notable that you do not have the opportunity to negotiate with the opposing party in the same way that you would do in person. In the SEND Tribunal, the parties will often agree specific wording for the Educational Health and Care Plan in person, both before the hearing and during breaks. However, the judge was proactive in encouraging agreement, and allowed time for the lawyers to mimic “courtroom door” advocacy in the virtual lunchbreak.
More problematic from a client care perspective, you do not have the opportunity to meet your client in person or take instructions from them as matters arise throughout the day. I would advise anyone appearing in a video hearing to make sure that they have organised in advance how they will stay in touch with their parties through the day. I asked my witnesses to message me if their internet dropped out, so that we could pause proceedings until they reconnected. The judge was sympathetic, and repeatedly checked in to make sure that we were all still connected.
At the end of the proceedings, the judge asked the parties for confirmation that they felt justice had been done. We agreed without hesitation. This trial, and the many more video hearings that will be taking place over the next few weeks (or months), is a testament to our justice system. In these unusual times, judges, barristers, parties and witnesses are pulling together to make sure that the trials that do take place will not suffer as a result of the lockdown.
Practical Tips for Video Hearings
• Test the software before the hearing – you will be sent a link and an access code to the software for the video hearing in advance. Make sure that you have signed in well before the hearing and confirmed that your microphone and webcam are working. If you have any technical difficulties, consider dialling in by telephone instead.
• Plan your screens – If you are using multiple screens, spend some time thinking about how you are going to organise them. Where will the video link be? Where will your bundle be? Where will you make notes?
• Think about using headphones – this helps minimise the background noise for others, and ensures privacy when you are conducting a hearing in a busy home.
• Mute your microphone when you are not participating – this will help reduce background noise.
• Think about how you are going to communicate with your witnesses throughout the day – consider giving your witnesses your phone number and encouraging them to send you a text message if they have any technical difficulties.
• Think about how you are going to communicate with the other parties – make sure that you have contact details for the other side so that you can negotiate with them throughout the day if need be.