Telephone hearings are on the rise and can be used to reach some very important decisions, but they require a different set of skills. Rupert White looks at what solicitors need to do to prepare properly




Since March this year it has been possible to have procedural hearings take place over the phone in any court except the Royal Courts of Justice, and it looks likely that both judges and parties to litigation will increasingly use this option to save court time, firm time and hassle.



But telephone hearings are not the same as hearings in person - they require a subtly different set of skills, say experts, and solicitors

may not be giving them as much attention in terms of planning and preparation as they should.



District Judge Steven Gold sits at Kingston-upon-Thames County Court and has done a fair number of telephone hearings. Considering that all allocation hearings, listing hearings, case management hearings and interim applications judged to need less than an hour can now be done over the phone, 'at these hearings very important decisions are made that will impact on the final result'. This means solicitors taking part need to remember that, though they are not in court, planning, document submission and the conduct within the hearings needs just as much attention to detail as any other.



Kingston is processing about 20 telephone hearings a week, according to Judge Gold, and this is just the start of a process that will become the norm. Procedural hearings are often, by tradition, left to more junior staff, but this means it is even more essential that some basics are followed. Timing is one, because telephone hearings cannot last more than 59 minutes.



'It's important that solicitors think very carefully about the time estimate they give,' explained Judge Gold. 'There might be an inclination to underestimate timing, but then you'd not be able to finish.'



Telephone hearings are also sometimes ill-prepared for by solicitors, Judge Gold said, and there is not enough concentration on making sure the judge has all the documentation. 'If you're going to submit documents, you've got to do it in good time,' he said. 'If for whatever reason you're not faxing documents until the day of hearing, it's important that you mark that they're urgent and to follow up that they've been passed to judge.' But, essentially, get those documents in ahead of time and in full.



A key element of telephone hearings is that they take place outside of a courtroom, generally at the desks of the parties involved. This means all the distractions of work, as well as all the problems of voice-only communication. Because most human communication is non-verbal, telephone work needs more focus and some subtly different skills, according to Jane Ching, reader in course design and curriculum development in civil litigation at Nottingham Trent University.



'There's a different kind of management involved,' she said. 'In addition to all of the other skills that one needs in face-to-face hearings, there is also management of yourself. On the phone, planning is more important. If there's something missing, you can't hand it to the judge there and then. Even if you've sent the documents, you don't get the feeling whether the judge is looking at the same part of the document as you.'



Nottingham Trent has run a few courses involving telephone advocacy, and Ms Ching is considering a course dedicated to it. Already the university has done work offering telephone advocacy training over the phone, which would certainly replicate the environment.



'It does call for a different style of advocacy on the part of the lawyers,' Judge Gold told the Gazette. 'The advocate's only natural tool of persuasion is his voice in a telephone hearing.' Solicitors therefore need to have greater concentration on what they have to say. For example, said Judge Gold, making an intervention is different: 'It can grate more on the phone than it would in person'.



There are also no cues for advocates. 'If one is intervening, it's useful to reintroduce yourself - you may not have spoken for ten minutes,' he said. There is also the issue of recognition, which in a three or four-person teleconference, can be hard. 'Three pompous male barristers may all sound the same on the phone,' Judge Gold explained, 'especially if they come from the same chambers.'



We are also increasingly living in a visual culture, which uses very different communication elements to telephone work, said Ms Ching. 'Essentially, you're working within a much smaller compass. In telephone advocacy, it's only word choice, tone of voice and expression, so the [intellectual] picture you create is more important and more difficult.'



In terms of time management and planning, both Judge Gold and Ms Ching believe that telephone hearings will become increasingly prevalent, so doing well in them will be just as vital as any other hearing, especially with case management. Telephone hearings may not be as sexy as 'virtual courts', but firms probably need to incorporate their rise into training and development plans fairly soon.





Jane Ching's top tips for telephone advocacy:

l Think about the implications of doing advocacy at your own desk and reduce distractions, such as email and your mobile phone. Some people even go to a conference room.

l Plan and prepare - remember, you will not be able to introduce documents late.

l Use a mirror-signal-manoeuvre technique for guidance - tell the judge to go to a page, ask for an audible indication they are there, then start to talk about it.

l Do not be embarrassed to start your submissions with who you are and which party you are from, even when doing it more than once. You can do it subtly, such as starting with 'for the defendant...', but you should still do it unless you are sure you can be differentiated.