By Bonnie Eslinger

Law360, London (March 8, 2021, 6:50 PM GMT) -- It was a lawyer's star turn in a London courtroom lost to a poor internet connection. Several British stars had settled phone hacking claims against one of the U.K.'s biggest newspaper groups, and a lawyer for the publisher was about to make a formal apology.

The solicitor's face briefly appeared on the Microsoft Teams video conference and then dropped out.

High Court Judge Anthony Mann called out to the solicitor and for a moment there was silence. Then he asked another lawyer representing Mirror Group Newspapers to read the publisher's response.

"I'm afraid he's lost his 15 minutes of fame," the judge quipped.

Several minutes later, a harried solicitor popped back into the proceedings.

"I believe I am back," he said. "I apologize for the disruption. The irony is I came into the office to avoid such technical issues."

Such is the world of remote hearings, forced out of courtrooms and on to the internet a year ago as a result of the COVID-19 pandemic. And while the experience of holding virtual hearings, trials and other legal proceedings has improved over the past 12 months, lawyers told Law360 that hitches remain.

In-person hearings are preferable, but judges and parties have been working out the wrinkles to enable online proceedings to happen as effectively as possible, said Henry Stewart, a commercial litigation partner with Cooley LLP.

"The risk of advocates experiencing connection issues to remote proceedings is obviously never going to disappear," Stewart said. "In my experience, the patience and understanding of judges faced with technical issues or breaks in the quality of audio or visual connections continues to play a significant role in the success of remote proceedings."

A year ago, when the coronavirus began rapidly spreading, England's civil courts quickly ramped up their use of telephone and video technology to continue as many hearings as possible, having previously only experimented with fully remote hearings as part of a court reform pilot project.

By the summer, nearly 85% of the work of the Business and Property Courts was being done remotely, according to court officials.

"I do not suggest that it has been smooth — the technology has been troublesome at times," said Judge Geoffrey Vos, now the master of the rolls, during a June 3 Chancery Bar Association Zoom talk.

From bandwidth snafus and issues with electronic bundles to private messaging obstacles and international time zone scheduling concerns, lawyers, litigants and judges have encountered considerable obstacles with this new way of working.

Some are unavoidable, others perhaps unanticipated.

A recent High Court hearing conducted by telephone conference, for example, used a tech platform that kept interrupting the proceedings to announce the names of participants as they joined or left the conference — much to the audible frustration of Judge Matthew Nicklin.

Bird & Bird LLP partner Morag Macdonald said in the weeks immediately after London's lockdown, one of her cases was going to be among the first to be conducted remotely, but she was relieved when it settled on the first day of trial, "because to be honest, at that point everything was shaky."

A virtual trial conducted at the end of 2020, however, went off fairly smoothly, she said.

"There are challenges, there's no doubt about it," Macdonald said. "I think to a certain extent, it depends on what your judge is like."

The technology used can make a difference as well.

"With Skype for Business you only have those small [photo] squares in the middle and you can't make them any bigger," Macdonald said. "It's just a bit irritating that some of the judges, that's what the court set up for them, so that's what they use."

There have also been fewer connectivity issues with Microsoft Teams when bandwidth drops, she added.

"It's just iffy things like that that make it harder. And I think everybody will tell you, including the judges, that doing remote hearings by video is more tiring," Macdonald said.

Issues have also come up when scheduling witnesses for trial who, under pre-pandemic circumstances would have come to the U.K. to testify, but are now locked down in other countries and different time zones.

"One of our expert witnesses was in California, so we had to ask the court to shift the time so that we ended up doing hearings in the afternoon and the evening, with the cross-examination," Macdonald said. "That was a challenge."

In some cases, legal arrangements have to be made to allow witnesses in other countries to testify remotely. For a High Court patent trial held at the end of last year, permission had to be obtained from a German district court and the Swiss Federal Department of Justice to allow experts to give evidence in the DNA sequencing case by video link, according to a January judgment in the case.

"I am grateful both to the Freiburg Court and the Swiss FDJP for their assistance in this matter," the court wrote. "The defendants' legal teams left it far too late to make these arrangements and it was only with the assistance and cooperation of those authorities (and the efficiency of the Masters of the Queen's Bench Division) that the arrangements were made in time."

Lawyers have also seen problems when two hearing participants are speaking at the same time, such as when one barrister jumps into a conversation.

At a breach of contract hearing in February, a lawyer for ATM maker Global Display Solutions complained about the counsel for NCR speaking over him, creating a technical "guillotine" that cut off his submissions to the court.

NCR's lawyer replied that video hearings make it difficult to know when the other lawyer is wrapping up a point, because "one can't pick up the body language to know if there's more to come."

Ben Knowles, Clyde & Co LLP's global arbitration group co-chair and dispute resolutions practice group chair, said overall there are many advantages to holding hearings virtually. But he acknowledged there are still some obstacles to overcome.

Some lawyers have had to tone down their courtroom style for virtual hearings, said Knowles.

"People don't want to have somebody shouting at them at full volume in a virtual hearing, it has to be more measured," Knowles said.

Court bundles, the paginated pack of documents compiled for a trial, are also an issue when participants are not in the same room, lawyers said.

"There needs to be more cooperation between the practitioners," Clyde & Co partner Chris Burdett said. "Because actually adding a page or two pages is not necessarily straightforward."

With many hearing participants preferring paper documents, the law firm prints out hard copies to courier out to individuals' homes. When pages need to be added, legal teams often end up creating a whole new bundle with the added pages that's recirculated to the parties.

But, Burdett pointed out, that means that anyone who has already marked up the first bundle will have to start over with the new version.

It's the same with electronic bundles. Just before the start of a recent intellectual property trial between InterDigital and Lenovo, High Court Judge Richard Hacon asked the parties not to recirculate whole new bundles when changes occur.

"It's not really helpful to have just another updated bundle sent at this stage because I've marked it up," Judge Hacon said.

The fact that lawyers and clients are working separately from their homes during virtual proceedings also makes it challenging to communicate privately mid-hearing, Burdett said. Like many law firms, his team uses the mobile messaging platform WhatsApp to send texts to each other. But when counsel is speaking to the court, it can be hard to keep an eye on the phone.

"It's actually really incredibly difficult in a practical sense to pass messages to counsel and I'm not sure how we're going to get around that," Burdett said.

To tackle that problem, Macdonald said Bird & Bird and other law firms have been having their legal teams participate together in one large conference room.

In court, instructing counsel can put a post-it note before a barrister while he or she is talking to the judge. These days, Bird & Bird team members are scribbling messages on whiteboards placed in front of counsel in order to maintain safe space apart, Macdonald said.

"We're socially distanced, but we're all in the same room," she said. "It's not ideal."

Despite the obstacles that have come with transitioning to online court hearings, lawyers told Law360 that they hope that at least some remote proceedings remain even when the public health restrictions are lifted.

Judge Vos, during a January webinar on civil justice and law technology, said traditional court hearings, courthouses and judges will remain in the future, "just as retail shops have survived the astonishing growth of online shopping." But, he said, new technology and remote proceedings should be embraced.

Clyde & Co's Burdett said he is a strong supporter of virtual proceedings, noting they offer cost savings, convenience and the ability to let more people participate from across the globe.

But even the best technology can't fix every issue. At Burdett's first virtual hearing last year, a lawyer in Kazakhstan was late to the proceedings despite not needing to leave his hometown to attend the High Court, he said.

"As part of lockdown, Kazakhstan had tanks on the streets, preventing people from traveling," Burdett said. "So he couldn't get to his office for the hearing."

--Editing by Joe Millis.

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