We are living in unprecedented times where the majority of our contact with clients and decision makers is now by virtual communication. Gone are the days when you would attend court with your client and persuade the decision maker with your excellent oral advocacy skills and court presence. Those days may return, but at the present time a family court practitioner requires to adapt their advocacy skills to the ever-changing mechanism
When the coronavirus pandemic hit in March 2020 we saw a global sisting, or placing on hold, of current court actions. This related to all types of family cases, including actions where protective orders such as interdict were sought. The court service, like many other public services, required to close its doors to deal with the risk to public health from the coronavirus. It is a more traditional service, and we were not yet in the position where, for example, motions could be lodged by email or agents’ signatures accepted electronically. The court still required principal documentation for many types of actions. The court service therefore required to adapt its procedures very quickly to allow for remote access to justice.
What followed next was the opportunity for a restart application to be submitted for cases that had been sisted ex proprio motu. These were not without their difficulties; however, it was the beginning of the court service coming back to life.
The court service then adapted to offer teleconference hearings for many types of civil hearings. Practice and procedure varied across the sheriffdoms, the different courts in each sheriffdom and indeed in the Court of Session. The Family Law Association liaised with the court service in raising issues about consistency in how matters were dealt with. Feedback was provided to assist with the evolving landscape of virtual hearings. Teleconference hearings were an improvement where there had been very little scope for hearings. The court was then in a position to deal with civil business, giving agents dial-in details to attend a teleconference hearing. In some courts the practice was for agents to be telephoned by the clerk. This led to difficulties in clients being able to access hearings, in particular child welfare hearings, and this was addressed by providing dial-in details. A teleconference hearing is not without its difficulties and does require an adaptation of advocacy skills, particularly with regard to enhanced listening skills and also sign posting.
The court has also required written submissions for many types of hearings. There is a skill required in presenting a written submission. Its purpose is to allow the court to be in a position to review cases several days in advance and then deal administratively with the cases that are agreed. Practitioners should be wary that they may not also be given an opportunity to address the court in a hearing following written submissions being lodged. It is therefore imperative that your written submission is clear and focused, and that the motion you are making to the court is backed up with reference to facts and, if required, relative authorities. The decision maker and your opponent are also thereby given advance notice of your argument and the documents you wish to rely on. You should also be intimated timeously with a submission and productions from your opponent, which allows time to consider their position in advance of the case calling.
We are now in the position, as I write this in February 2021, where Webex or video hearings are being rolled ou tby the court service. This is a much-improved forum and does allow easier access to the court service for parties and also an easier use of traditional advocacy skills. Using the Webex platform is simpler than it may first appear, and the facility is constantly being improved by the court service as more hearings take place.
Court etiquette in virtual hearings
The court service has issued guidance and directions for the various types of hearings that have evolved through2020 and the start of 2021. The up-to date guidance can be viewed on the Scottish Courts website. Guidance has been issued in regard to etiquette for virtual court hearings. Agents are expected to appear and conduct themselves in the same way that they would if actually appearing in court. You may require to remind your client that it is not acceptable to record court hearings, and that they must conduct themselves in a manner that would be appropriate to attending a physical court hearing despite them joining remotely.
Where you are attending a virtual hearing on behalf of your client, the art of actively listening becomes even more important than when you are attending court in person. We may not realise it, but usually when we are attempting to persuade a decision maker, we are paying acute attention to the decision maker’s response to our submission. For example, you are likely to have been trained that if a decision maker puts down his or her pen they may no longer be open to your current argument and you should consider the benefit of proceeding further with that point or line of argument. These are the types of visual clues that it is important to observe. When you are attending a hearing that has no scope for you to view the decision maker, you do require to enhance your other observational skills, in particular your listening skills.
A court practitioner will be well aware that preparation for a hearing is the route to success. This is even more so in the virtual court. The requirement for written submissions does focus the mind days in advance of the case. Preparation should also include making sure you have a room where you ideally would not be disturbed for the hearing, and have everything that you require to take part available to you, with easy access to documents to which you may require to refer.
One of the skills that I have found particularly useful, and have developed further in regard to virtual hearings, is signposting. It is especially helpful during teleconference hearings, because you are in a position to let the decision maker know how many points you wish to make in support of your submission. This will generally avoid the situation where the decision maker and any other agents may think you have finished a submission when in actual fact you are engaging your active listening skills to a potential response from the decision maker.
We are all requiring to adapt to the use of technology which was not part of our day-to-day working practices before the coronavirus. Most of our interaction now with clients is by way of virtual meetings on platforms such as Zoom and Teams. Consider what new technology you may require to perform your role to the best of your abilities. This may involve, for example, additional screens and hardware to allow you to access documents during a virtual hearing. It is worth taking some time to have your virtual office set up to allow you easy access to all the materials that you require.
Keeping in touch with your team and your clients
When you are engaged in a virtual hearing, matters may arise that require clarification or additional information. It is very important to be in a position to have another means (other than the laptop, iPad or computer that you are using for your virtual hearing) to contact your team or indeed your client, whether that be by email or instant messaging. The court service is improving in terms of access for clients, and the situation where you have a difficulty in that your client is not in attendance with you, to allow you to obtain instructions, is being made easier with video type hearings. The court service is also envisaging the opportunity to have breakout rooms within virtual hearings where agents can obtain instructions and discuss matters with their clients in the way that they normally would in a court hearing.
Practice makes perfect
Where you are engaging in your first virtual hearing I suggest that you have a trial run with the use of the technology. This will give you the opportunity to iron out any initial difficulties, and the assurance that you are able to access the virtual platform and use the remote technology in the way that is required for your hearing.
Explain to clients the new procedure
The ever-evolving court procedure means that agents are in the position of requiring to update their clients regularly on how the court service will deal with their hearing, when they will be informed for example of the time of the hearing, and how the hearing will be dealt with. It is an ever-changing landscape at the moment. The matters dealt with by family law practitioners are usually highly emotive for clients, who require to be consistently informed as to how the court is dealing with matters which may vary from hearing to hearing if their case continues over a matter of weeks or months.
Opportunities for training
The Family Law Association committee has been working to provide a bank of free CPD seminars to assist the membership during these difficult times. I have been working with members of the judiciary to present a seminar on virtual advocacy, and we hope to have a demonstration of a virtual hearing with hints and tips to assist. In addition, I sit on the committee of the Society of Solicitor Advocates where we are also working on training for virtual advocacy. Please feel free to contact us for any enquiries on training opportunities. Contact details are provided at lesleyandersonlaw.co.uk