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A collective game-changer

18 June 2020

This is not an article about Covid-19 but about people and attitudes. Simply put, over the last five months, the impossible has become the inevitable; from my perspective as both a lawyer and the Managing Partner of Bedell Cristin's Jersey office, processes and procedures that were unimaginable or unachievable previously have become commonplace.

Over the last five months, nearly half of the world's population has been subject to some form of lockdown; hospitals have been built in weeks rather than being planned for years; and despite more than 300,000 people sadly dying of Covid-19 without a vaccine or cure being found, countries around the world are optimistically taking the first steps towards lifting lockdown. Yet from my business's perspective, meetings are and have been taking place daily, across time zones and jurisdictions, with minimal hassle between teams and clients; all are operating remotely from desks, sofas and kitchen tables, on a wide variety of equipment – and doing so perfectly satisfactorily; documents are being executed or witnessed digitally (and accepted); and for disputes, mediations or formal court proceedings these are all being conducted remotely. It is truly amazing.

The absence of choice has forced us all to adapt, and technology has facilitated that change to an extent we would have found hard to contemplate this time last year. So what does the future hold for lawyers and the practice of law - more change or a return to the rhythm and ritual of the past once we can return to our offices?

There will be some who will inevitably wish to return to the way things were, but for the majority, change and yet more change is how I see legal practice developing and I set out five examples below:

  1. Digital Courts
  2. Flexibility of procedure whilst preserving necessary safeguards;
  3. Adapt or die;
  4. Soft borders;
  5. Junior lawyers

Digital Courts
Social distancing has meant that across the globe, Courts have had to work virtually, with video hearings being the only practical way of functioning. But with video hearings, has come the need to file and use electronic bundles, hyperlinked documents, and to operate without reliance on the paper which lawyers love. Whilst at present we may be using email to file the materials, it is a relatively small step from where we are now to creating a portal for proper digital processes.

Naturally, there have been some challenges with the technology and some issues translating established real world processes to a virtual environment (such as wearing Court robes for video hearings), but in the main those issues have been overcome.

Courts and practitioners are now stress testing the virtual model to see where it is, and is not, appropriate to use. But any philosophical objections to online courts has probably evaporated. The next stage of development will be to streamline the processes and their application to a point at which, for certain matters, the application of judicial artificial intelligence becomes a credible, and societally-acceptable, possibility.

Everyone who has been working at home over the last few months will have had to find workarounds; the Court and lawyers are no different. But what has been interesting to observe are the steps taken to ensure the integrity of any process and to maintain appropriate safeguards, such as, asking a person swearing an affidavit over a video link to confirm that they are alone and not being forced to do anything, or allowing parties their own virtual rooms to discuss matters when conducting negotiations or mediations over video conference facilities.

Courts that have historically relied on adversarial advocacy have found new ways of proceeding on the basis of documents only (particularly since documents have had to be filed far earlier than before which has given the Court the option to consider them properly, in advance of any scheduled hearing); and what's more, practitioners and clients have accepted these changes.

Going forward, whilst some might want a return to familiar processes, I do not expect Courts and practitioners simply to pick up where they left off. I think that processes and procedures will be looked at afresh and a variety of new ones will be created to allow access to justice at a price clients are willing to pay and Courts are able to deliver. If an issue can be determined satisfactorily on the basis of the (electronic) papers, why should there be an oral hearing? The possibility of multiple different routes through the justice system (a mix and match scheme according to needs) is a tantalizing possibility.

Adapt or die
What if Courts choose not to adapt and revert to type?
Like it or not, lawyers, judges and Courts all serve the interests of clients (whether that is the State in criminal matters, spouses in matrimonial proceedings, individuals or corporates). If lawyers or the justice system does not respond to client demands, clients will find a workaround (and that has previously included alternative dispute resolution or even appointing a "private judge" to make a binding expert determination).

Now, more than ever, clients will expect options and innovative solutions, products or routes (and that probably includes pricing too); if jurisdictions, Courts or lawyers cannot meet these requirements, clients will vote with their feet.

Conversely, for a jurisdiction that leads the way, hand in hand with its Courts in terms of process and procedure, provided it is coupled with judicial independence and integrity there is a tantalizing prospect of becoming a global jurisdiction of choice for a whole host of matters.

Soft Borders
One thing that has become clear over the last few months is that lawyers can work anywhere. Without physically travelling, the jurisdiction in which lawyers work and practice can be different to the one in which they live.

This is both a challenge and an opportunity; a challenge in that no longer are firms competing against their peers, they are competing globally for their local market - and doing so against groups of lawyers who have now become adept at working across borders and time zones with virtual teams built from scratch; an opportunity in that offshore law firms have proven themselves to be far more fleet of foot and agile than their onshore colleagues in rising to these challenges.

In my view, best in breed will survive and flourish, not just in their home jurisdiction but more widely too. Conversely, there will be no place for local and mediocre.

Junior Lawyers
If the senior lawyers have had an epiphany over the last few months in realizing that they can still function effectively without their usual offices, armies of junior lawyers and the assistance of administrative support, those junior lawyers will have had a shock. Not only have they been isolated by being removed from the office and their friends and colleagues, but the first casualty in an economic crisis is delegation, and anecdotally, the recent crisis was no different.

For those thinking of a career as a lawyer, the future role of the junior lawyer will be very different to that of today. But there again, perhaps that's not a bad thing; the next generation of lawyers should be different to my generation; they will need different skills and experience (in addition to a good legal grounding) so perhaps now might be the time for a discussion about whether the law should become a secondary career rather than a primary one and what skills (particularly those that my generation lacks) the aspiring lawyers of the future will need.

On their own, none of these developments is game changing, but collectively I think that they herald the start of an exciting period in which the practice of law will undergo a radical reimagining. The challenge for all of us is to be part of that change, rather than a consequence of it.

Author - David Cadin, Managing Partner.

This article was first published on BL Global, June/July 2020.

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