Diary of a busy practitioner, juggling work and family somewhere in England
There is much talk amongst lawyers at the moment about the benefits of virtual hearings. I’ve heard of barristers doing five directions hearings in one day at courts around the country without even putting their trousers on. I did my first one on Tuesday.
I don’t do that many hearings. I do a mix of contentious and non-contentious work, I work part time and I will use counsel where appropriate. I also genuinely think I’m very good at negotiating and keeping matters out of court.
This actually brings me to my first point relating to the telephone hearing I had to do on Tuesday. On the other side I had a solicitor who was determined to inflame the situation and ensure we ended up in court. Over the course of the last nine months he has - as far as I can work out - not listened to his client at all, with his client telling my clients that she wanted to drop the whole thing, and yet the vitriolic correspondence continued to flow.
My husband asked me why some solicitors are like this. It is either fee-building, I guess, or the instinct to fight for absolutely the best result for their client at any cost (in every sense of the word).
The matter, which of course I am not going to go into in detail, involved some adult children (my clients) and their stepmother. The dispute related to their dad’s estate. The hearing was a directions hearing to take place over the phone.
On my side there was me and the three children. On their side was counsel, the solicitor, a paralegal, their client and her daughter who was trying to help her with the conference call. Including the judge, that made ten people on the call.
I have a lot to say about this. Why all the lawyers on their side? I don’t know, it was only a directions hearing. I refer you back to my earlier comment about aggression and fee-building. How did the elderly step-mother deal with the conference call? Not well. She couldn’t hear well enough to record her name at the beginning of the call so I am assuming that she didn’t find the substance of the hearing easy to follow.
But from my point of view, this is what happened:
I spent from 8am to 9am going over everything, phoning some experts I might have needed quotes from, googling the judge and so on.
At 9am I had a Zoom meeting with the other side. I did this on my laptop as my work computer doesn’t have a camera. Oddly, the barrister was sitting in his spare room wearing a suit and tie. Perhaps one of his other four hearings that day were in person or by video. I hope he wasn’t trying to assert his smartness over me because it didn’t work. I could only think about how odd he looked and what he might be wearing on his bottom half.
Ten minutes into the Zoom my work computer froze, with the bundle I had chosen not to print off on the screen. I texted my husband and as many colleagues as I could think of to help whilst continuing to negotiate with these three lawyers. The barrister was making a technical point that was going to continue to inflame matters as I tried to come up with more possible solutions and my husband buzzed around behind me, trying to stay off camera, pressing buttons and attaching wires (to my devices, not me.) I tried to log off and on at least ten times, on each occasion going through the two part authentication process for remote working, putting a pin in on my phone and a password on my computer.
I had promised the clients their own Zoom call at 9.30am, so I got rid of the ridiculous lawyers and started a new call with them.
At 9.56am my computer started working again. At 10am the judge called. I hadn’t been able to go back to the other lawyers, so I didn’t know what their clients instructions were. At 10.02am when people were still being added to the call, I accidentally cut myself off trying to take the call off of speaker. The Zoom with my clients was to continue throughout the hearing and so I had to ask them to ask the judge to phone me back.
Counsel for the stepmother was asked to explain the position. His response reminded me of an eight-year-old who doesn’t want to go to sleep. He didn’t tell the judge he needed a drink or the toilet but the meaning of life was touched upon briefly at one point, and what so-and-so said to so-and-so three weeks ago last Monday, and honestly I thought he was never going to stop.
In an actual hearing, it would have been much easier to deal with this. I could have looked for clues in the judge’s body language as to what he thought of the filibuster, and - how do I put it - made the most of my own body language. As it was, I had to sit there silently whilst my clients stared at me on the Zoom call, annoyed at my inaction.
When it was eventually my turn to speak, I couldn’t make eye contact with the judge and smile. I couldn’t build any rapport. I would have loved the stepmother to see the whites of my eyes, to know that I wasn’t there to be aggressive and that I had heard - really heard - her desire to reconcile with my clients. I have no doubt that I could have done that without speaking directly to her, even with a barrier of three lawyers, if we were in the same room. On the phone I was just a voice. A really stressed voice who didn’t have access to the bundle until four minutes before the hearing.
At one point, I had to raise a very delicate issue between the parties. One that I had to raise, but one that might have prevented any reconciliation. I raised it very carefully, without giving too much detail. The judge then asked for detail and my clients were weeping and waving frantically at me on Zoom not to give it. The judge wasn’t grasping the sensitivity of the issue, and I know he would have done so if he could have looked at me and my clients.
You will be shocked - absolutely shocked, I’m sure - to hear that we settled a couple of hours later on the basis of the solution I had proposed two weeks before the hearing. As I came off the call my husband came in with cake (he’s a good one) and I literally had to lie down for five minutes. Then, I had a Zoom appointment with some new clients, which was a delight in comparison, and my day continued.
For the sake of balance I will say that my clients didn’t pay anything for my time travelling, and there is a huge amount to be said for going through a very stressful experience with an Enormous Puppy keeping your feet warm throughout. But if it was this stressful for me, a professional, what must it have been like for the parties? I’m sure virtual hearings have their place, perhaps in commercial matters, but a majority of hearings will deal with people’s lives, their relationships and their vulnerabilities, and the difficulties of communicating fully and clearly by conducting court hearings by telephone in the future, should, in my opinion, be avoided.
*Some facts and identities have been altered in the above article