A 10-day trial is tiring. Done remotely, it’s exhausting; a few thoughts on how to cope. And a couple of wise lessons on motivated reasoning and analogies: food for thought for us advocates.
Short thought: The first four weeks of January 2021 comprised two back-to-back employment tribunal hearings: a four-day one (albeit that it wrapped up in three) and a 10-day one. Both were conducted remotely, using CVP (the courts and tribunals service’s preferred videoconference system, since it works on a smartphone or tablet without the need for a download).
Both, sadly, we lost. But doing that much remote hearing work in quick succession drove home some important points. I may expand into a proper piece at some stage, and none of this is particularly new, but for those whose remote experience may be limited to single-day trials or applications, bear the following in mind:
- They’re exhausting. It might feel lovely to be sitting in your study (assuming you have one – a fairly large assumption, I admit). But the lack of physical presence is surprisingly wearing. The need to be alive to non-verbal cues on postage stamp-sized thumbnails is taxing, while the lack of physicality is itself equally wearing. The ET judge in the 10-dayer religiously took a break every hour, and he was absolutely right to do so. Even so, after five days of witnesses I was absolutely shattered.
- Screen space is critical. Don’t try to do this on a laptop alone – or even, frankly, a single big desktop screen. Two screens are a minimum. Play with the arrangement: having notes (I touch-type) and the videoconference immediately in front works for me, with the bundle off to one side. But everyone’s mileage varies. I also had an iPad set up as a third screen, carrying the witness statements, but that might not be necessary for everyone.
- Don’t use Word for notes. Or if you do, don’t try to use bullets or numbering. I have an M1 MacBook Pro, which is incredibly fast even by desktop standards. But I was keeping XX notes in a Word document, along with my questions. Everything was numbered and indented, and on day 2 typing lag became intolerable. I switched to an app without Word’s overhead (Obsidian – more of that another day) and everything went smoothly. Never again.
- Use the right A/V kit. In my case, a Blue Yeti mic, a Razer Kiyo webcam, and earbuds (Anker Soundcore ones). For a brief hearing I’d be OK relying on inbuilt mic and camera. But not for a multi-day. Why look and sound worse than you have to?
- Finally, back to exhaustion. Eat properly. Drink lots of water. Go for a walk or run every morning before the day’s hearing, and preferably after it’s done too before cracking into prep for the following day. Try to sleep (always a challenge for me). Enjoy the fact that you’re not in a hotel somewhere benighted. And accept that when the submissions are finally done, you’re going to flop.
Notwithstanding all the above, it’s clear remote hearings are with us for a while – and for interlocutory matters likely to remain the norm. Professionally, we owe it to ourselves to get used to them. So invest in the kit, learn to work paperlessly, find the setup that’s right for you. Otherwise, it’s like turning up to court with a bundle printed on paper the size of a credit card bearing your notes in invisible ink: it makes your life far harder, and it stacks the odds against your client. Not really the professional way to do things.
Someone is right on the internet: Earlier this week I wrote about tools for thinking. Tim Harford – FT columnist, More or Less presenter, role-playing gamer and someone who’s a good deal smarter than me – considered something similar in the FT yesterday. (For non-FT subscribers, Tim’s own blog usually carries his FT stuff about a month in arrears. For anyone on the RSS train, well worth following; for anyone else, well worth a regular check-in.)
Tim’s focus was on motivated reasoning – similar to confirmation bias, where one’s need, desire or willingness to believe something can lead us to see truth where none exists. He uses as the basis for his tale a fascinating story of a fake Vermeer, which fooled the Netherlands’ foremost expert on the painter in the 1930s and became a cause célèbre when the forger was found to have sold paintings to the Nazis, but freed himself from a treason charge by proving his fakery. (He became something of a folk hero – with another slice of motivated reasoning cutting in as people ignored, overlooked or simply “forgot” that he was arguably a Nazi himself.)
Tim’s piece is fantastic. His key advice chimes well with mine, and is simple – if not always easy – to put into effect:
Any of us is capable of falling for a lie. There is no guaranteed method of keeping ourselves safe — except to believe nothing at all, a corrosive cynicism which is even worse than gullibility. But I can offer a simple habit of mind that I have found helpful. When you are asked to believe something — a newspaper headline, a statistic, a claim on social media — stop for a moment and notice your own feelings. Are you feeling defensive, vindicated, angry, smug? Whatever the emotional reaction, take note of it. Having done so, you may be thinking more clearly already.
Well worth reading. Tim is an excellent story-teller, and has a skill with anecdote and analogy that we advocates could usefully learn from. His podcasts, including Cautionary Tales and 50 Things that Made the Modern Economy, are short, elegant and fascinating. Excellent training materials for barristers everywhere.
On analogies: I never knew a silk called Edmund King, from Essex Court, who died just before Christmas of cancer. I wish I had; it seems he was a great advocate and human being. One of his final gifts to the profession was a wonderful piece entitled “How to lose a case”, published on Essex Court’s website, which gave a dozen or so pieces of excellent advice on what not to do in complex litigation.
In a paragraph about the importance of making complex things seem simple, he stressed the value of analogies. I won’t spoil the piece, but he points to two cases in which he said a good analogy changed everything. Take a look at one of them: Harbourmaster at paragraph 27. The impact of the analogy is palpable.
The rest of Edmund’s piece is fantastic too. (His intro, with its reference to marriage advice from a celibate priest, endeared him to me instantly.) Read and learn. I did. And as a result, regretted deeply the loss of a man I’ll never now meet.
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