The crisis brought about by the spread of COVID-19 is an ongoing phenomenon that has shaped and been shaped by the networks and institutions that form our society. The legal profession has not only been tested in its aims of maintaining profitability and continuity, but it has also been an agent in safeguarding the outcomes that define the very role of law within society.
Legal transformation is not only about managing the impacts of technology and the market within our workplaces; rather it describes the process of legal professionals envisioning and driving better outcomes in the broadest sense. Its slow progress and its limits say less about legal “culture” than about the pressures and challenges impacting each use-case.
As Federal Court Chief Justice James Allsop told Michael Pelly in an interview with the Australian Financial Review recently, the wisdom to “never waste a crisis” even applies to the work of the Court. This statement raises important questions about how the legal profession will have evolved once lockdowns are lifted and we all return to work.
Further comments by Chief Justice Allsop suggest that remote hearings will become embedded in court practice like never before, and such a change may be the tip of the iceberg for the legal profession. This article surveys how the crisis has catalysed the use of legal tech, and predicts how legal practice will further integrate with technologies.
Trust issues and technology uptake
The Federal Court’s decision to implement remote communications technologies was marked by the publication of Information Notes SMIN-1 and SMIN-3 to outline special measures in response to COVID-19, on the 31st of March and the 7th of April, respectively.
The swiftness of this decision, where courts in overseas jurisdictions, as well as other institutions in Australia were much slower to act, is an important landmark for legal technology. It reveals the crucial role that trust plays in the uptake of technology.
Trust here means much more than the opinion that the user or procurer holds about the credibility and expertise of the technology provider. In a decentralised work environment, lawyers must be able to trust in the people and tools they are working with, and should hold that trust in the same regard as the trust that a client places on their lawyer.
While the lockdown period has placed a premium on transparency and communication, more significantly it has tested both the ability of lawyers of all stripes to work independently and the efficacy of technologies for specific purposes. The test results will prove crucial over the next year as lawyers progress through their careers and trial periods for legal technology services tick over.
Remote court technologies leading the way
Remote court technologies incorporate not only the audio-visual channels that mediate communication across distances, but also the technologies that allow for transcription and the viewing of evidence or other documents, as well as electronic filing systems.
The court in the case of ASIC v GetSwift Limited [2020] FCA 504 reported the positive experience of judges in conducting remote hearings through Microsoft Teams in accordance with the Information Note, despite certain technical difficulties slowing down proceedings. While judges have considered the use of exceptional measures on a case-by-case basis, ASIC v GetSwift is characteristic of judgments across many courts in the last few months, many of which have affirmed the Federal Court’s reasoning. Conversely, judgments such as ASIC v Wilson [2020] FCA 873 suggest that only in particular circumstances will postponement be preferred over using a remote court under lockdown conditions.
From such an experience, it can be expected that remote court technology will be used more regularly once regular court business resumes, in particular for case management and, as the Federal Court’s adoption of the Immediation platform suggests, for sensitive matters including domestic violence and sexual assault cases. Naturally, the more complex the litigation matter, the more likely technical difficulties will pose significant obstacles to this manner of trial.
The Court also noted that:
‘there is undoubted difficulty in taking instructions during the course of evidence, but…this is something which, although not ideal, does not create insuperable difficulties with the use of some imagination.’
(ASIC v GetSwift Limited [2020] FCA 504 at [34].)
While under ordinary circumstances, the use of “imagination” might have been considered foreign to court procedure, under current circumstances, this is now sound pragmatic judgment.
Leadership of courts expected to have significant implications
The court’s overall approach is clear. The available technology is highly effective and trustworthy, yet its functioning is not just a matter of smooth implementation; rather, the people using the technology must be empowered to overcome possible challenges. While many of today’s judges might have been admitted when fax machines were a novelty, it is the court’s responsibility to its stakeholders and its patient guidance of individuals involved in court process that has enabled its use of technology.
Providing adequate training and accountability, as well as producing best practice procedures in consultation with users, are indispensable in creating positive experiences and personal investment in these processes. The Federal Court has sought to do this by publishing a user guide, and some barristers also have taken the initiative in creating guidelines to encourage a collaborative and consensus-based approach to court procedure.
The Federal Court has also taken a simple and flexible approach to signing and verification. SMIN-1 states that a person typing their name in the signature space will satisfy the requirements of a signature for the purpose of filing, which can in theory be performed by many different online tools. The Federal Court however made clear that the process of swearing or affirming an affidavit remotely might be unsatisfactory, and only recommended a similar remote procedure as an interim measure to be superseded by a proper swearing or affirmation at a later stage.
The fact that the Court implemented these procedures in advance of legislative amendments regarding electronic signatures, oaths and affidavits affirms the importance of such leadership in a context where many practitioners felt required to take leaps of faith. Beyond the court context, for the court to place their trust in technologies such as Microsoft Teams is a strong endorsement ringing across the entire profession.
One may argue that it is easy to point to the importance of trust in the context of the Federal Court and of Microsoft, both of which have long-standing authority in their respective fields. Yet trust is built at the intersection of top-down messaging and leadership, and relationship-building and everyday interactions with technology. The slow and patient journey of many legal technology providers shows that even such a vague and unquantifiable variable as “trust”, developed less at conference showrooms than through personal engagement with digital tools, may well predict the uptake of legal technology. This fact is not lost on technology providers, many of which have developed drafting, analysis and reference tools not as separate platforms but as add-ons for different Microsoft programs, thereby building on existing trust networks.
Management and collaboration tools on the rise
It has been very commonly said during the lockdown that we are now discovering how many meetings could have been replaced with an email. The same observation can be made of those stressful office tasks and communications required to manage the logistical aspects of preparing for litigation or transactions. While such work, which would often not be considered billable work, may previously have informally fallen into the responsibility of certain team members, working remotely has required more clearly delineated division of labour and made such work more visible and urgent.
Technologies that simplify and rationalise such tasks, including matter, contract and document management systems, have been available for some time; it is likely that more such technologies will have been implemented during lockdown. Research conducted by Thomson Reuters between January and February this year showed that only 38% of legal employees believed that their organisations, systems and process could handle an increase in workload. While it is too early to survey how this perception has changed during lockdown, a focus on building resilience and flexibility has increased the profile of technology among firms in recent months.
On a similar note, the leading advocates of such technologies during ordinary times have unsurprisingly been those with care responsibilities at home, who need to be on call to physically assist their loved ones even as their schedules are structured around the needs of the firm. The lockdown has shown that firms’ abilities to cater to those needs, such as by enabling remote work environments, should not depend on the cultures of certain teams or work attitudes of partners, but are crucial aspects of a modern workplace that should be well managed from the top down.
This moment has turned technological uptake from a matter of company culture to a material necessity.
The way forward
Trust is the key selling point of legal services overall, and lawyers as well as technology providers should do everything they can to uphold this trust among clients and society at large. Lockdown has shown that many aspects of technology and practice can be trusted to perform well in difficult conditions, and others less so. There will be many question marks regarding the profession’s trajectory in stormy years ahead, and the likely upcoming recession may confirm certain aspects of our trajectory while also raising new sets of questions. Our key values will hold the course steady.
More information on the procedure and implications of remote courts can be found in the Practical Law Article, The remote courtroom: tips and tricks for online hearings.
