2021i29, Friday: remote learning.

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:

  1. 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. 
  2. 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.
  3. 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.
  4. 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?
  5. 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 thinkingTim 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.

(Don’t forget – if visiting a site doesn’t float your boat, you can get this stuff in your inbox. Subscribe at https://remoteaccessbar.substack.com/.)

2021i6, Wednesday: CVP doesn’t like Macs.

Or maybe it just doesn’t like me; but there’s a solution. And Octavia Butler is glorious.

Short thought: I’m in the middle of a multi-day hearing, which moved to a remote setting (using CVP, the browser-based vidconf platform whose pending introduction was massively accelerated last year to deal with the pandemic). I’m not sorry about that; four days in an ET hearing room in Croydon amid Tier 4 didn’t exactly delight. (Bury St Edmunds ET did the right thing on Monday, moving my 10-day hearing starting on the 13th to CVP. Not all courts and tribunals are behaving so sensibly, but kudos to these two – and the Lord Chief Justice has now made it pretty clear that remote or hybrid is the default, unless justice can’t be done that way.)

While I’d infinitely prefer to do it over Zoom or even Teams, the CVP rollout is nonetheless one of HMCTS’s success stories.

However – and perhaps oddly since a large number of barristers use Macs (at least, the ones I know) – I’ve been unpleasantly surprised at how poorly CVP plays with them. My first few CVP hearings, Chrome – the recommended browser – refused to recognise any camera or microphone, built-in or otherwise. Firefox worked, but wouldn’t access my external webcam and mic; only the built-in ones. You can access CVP through Teams or Skype, but some of the functions are restricted. (And on older Macs, such as my previous machine, a 2018 MacBook Air, Teams sends the fan screaming; although the new and lovely M1 MacBook Pro is just fine.)

I’ve finally (I think) found a solution to the Mac/Chrome/CVP misery. It’s an annoying workaround, but at least it seems to do the trick, which is to:

  • Quit Chrome
  • Go into System Preferences/Security & Privacy/Privacy
  • Untick Chrome in the list of permissions for both Camera and Microphone. (If it’s not in both lists, add it to each with the little “+” button. THEN untick them.
  • Then retick them again…
  • And restart Chrome.

Your mileage may vary. I seem to have to do this every time I leave the “room”, which is a pain. But at least it works.

Someone is right on the internet/something I really need to read: For someone who firmly recognises that great literature is great literature irrespective of its genre, I am sinfully under-read when it comes to Octavia Butler. The wonderful Brain Pickings newsletter drove this home to me in its Christmas issues, by linking to this insightful, impactful selection from the verses which head the chapters in Butler’s Earthseed books.

One rather painfully on-the-nose example:

Choose your leaders with wisdom and forethought.

To be led by a coward is to be controlled by all that the coward fears.

To be led by a fool is to be led by the opportunists who control the fool.

To be led by a thief is to offer up your most precious treasures to be stolen.

To be led by a liar is to ask to be told lies.

To be led by a tyrant is to sell yourself and those you love into slavery.

Parable of the Sower and Parable of the Talents are now on my Kindle. Next up, I think. And Brain Pickings is brilliant. Well worth a look.

(Don’t forget – if visiting a site doesn’t float your boat, you can get this stuff in your inbox. Subscribe at https://remoteaccessbar.substack.com/.)

The pupil’s view of law in lockdown

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.