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Avoiding the Pitfalls of Remote / Hybrid Hearings: My Ten Top Tips

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford, offers a few hard earned pointers to improve the remote hearing experience.

Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers, Chelmsford

 
















Gabrielle Jan Posner, Barrister and Recorder, Trinity Chambers Chelmsford

This article is dedicated to Chas Tagg (Charles Adrian) 26 April 1952 – 22 December 2020 

Having waved farewell to the annus horribilis that was 2020, I have been musing about what I learned during the year. In January 2020 on my CPD record sheet for 2020 under learning objectives I put:

"To learn to take advantage of technology. Stop relying on printed bundles and learn to work with e-bundles. Improve practice and work life balance by managing time better."

In the immortal words of Meatloaf, "Two Out of Three Ain't Bad" and since I never expected to achieve them in under three months, perhaps in that regard, at least, it was an annus mirabilis. Admittedly, it was thrust upon me and I can't say I am there yet, but you could say, "You've Come a Long Way, Baby".* I have, however, failed spectacularly to achieve the third objective – as, indeed, we all have – because the professional and personal lives that we had so carefully constructed for ourselves have been snatched away so peremptorily.

This time last year I thought Zoom was a rocket-shaped, three-flavoured ice lolly (which won't mean anything if you were born after the 1980's) and that the Cloud Video Platform was something that would not be of any interest to a respectable middle-aged lady. It is precisely because of my age that achieving the first two objectives in such a relatively short time feels so momentous. Not only can I edit and mark up a PDF and find a page reference quickly but, as somebody who had never previously Skyped or Face-timed, I am proud not just to see my grandchildren via WhatsApp video and do Zoom Pilates and quizzes, but also to be able to participate in and preside over wholly remote and partly attended hearings. 

Since  I see these hearings from both sides and hear a lot of great anecdotes over socially-distanced lunches with other judges, such as the one about the upside-down district judge in the first week of WFH**, I thought it would be worthwhile to share what I have learned in the hope that it may help others appearing remotely to come across rather better than is sometimes the case. You may not know this – I certainly didn't – but before you even start, the first thing you need to do, if you have a laptop or PC, is to check where your camera is. That is what you need to look into, not the middle of your screen or the eyes of the person you are talking to. You also need to adjust the height of your device not, sadly, for your own comfort if you are making notes, but so that you can still be seen if you lower your head to write.

Once you have mastered the other basics, like turning on your speakers and knowing where the mute and disable camera buttons are, it may help to bear in mind the following:

  1. The judge will probably be in court with his or her camera disabled and on mute by the time you are let into the virtual hearing room, so be careful what you say, especially if it is about the judge and you have been wondering which planet he or she is on.
  2. Unless your name is Tracey Emin, nobody wants to see your messy bed in the background or your children's or grandchildren's photos, especially not in a care case where the care plan is adoption.
  3. Your barking dog who bounds in the room and licks your hand to show it is time for walkies is not adorable. You need to allow for the possibility of a hearing running over and make suitable arrangements. If, say, your own children really do need you, at a convenient point ask for a short break; everyone will understand the constraints we are all under.
  4. If the courtroom has a large free-standing monitor, the image of you seen by the judge and those in attendance may be enormous. Pulling faces or gesturing during other lawyers' submissions will be seen very clearly; so remember to disable your camera before you look towards heaven, shrug your shoulders or draw your finger across your throat.
  5. As the judge, it is very difficult to establish rapport at a remote hearing. A lot of techniques that are useful to diffuse tense situations when everybody is in the room together, such as making eye contact, lowering your voice and injecting a little humour, are impossible or just don't seem to work well. Humour, in particular, is not a good idea; there is too much scope for misunderstanding.
  6. When it comes to submissions, the best remote advocates are the ones who say as little as they possibly can and list their best points, with bundle references, on a couple of pages emailed in advance to the judge. If you were giving a speech at a wedding, you would not do so in the same way as if you were addressing a jury. Equally, you have to adapt your approach to being on a remote platform. As you make submissions, for the judge it is like watching the news with no outside broadcasts to break it up, so that by the time you've built up to your amazing point, you may have lost him or her. Those of us who represent parents in care cases often worry that if we don't say certain things, our clients will be disappointed; better to warn them in advance that this is not going to be the same as being in a courtroom.
  7. We've all heard about the person who is in business attire on their top half but when they stand up they're revealed to be in their underpants, but chunky jewellery, a coloured shirt or garish tie are quite distracting when all you see is somebody's face and torso.
  8. Unmute yourself and count to five (silently, of course) before you speak. If you open your mouth and start speaking whilst you are still on mute and / or your internet connection is poor and there is a slight time lag, nobody will ever catch the beginning of what you were saying.
  9. If you want to say something, raise your hand or write in the chat room. If you do use the chat room, watch out for automatic spell checking / predictive text. Unfortunate examples include Carcass for Cafcass and the Eat London Family Court. More disturbing was a message sent by one colleague to another to put in the chat room: "We seem to have had a power cut, my electricity has gone and now my wife has gone so I am going to phone in".
  10. In the daytime sit facing a window rather than with your back to it so that your face can be seen properly and doesn't take on a blueish hue. Don't back light yourself with a lamp in the late afternoon in the winter especially if you are prone to moving forward when you are cross-examining: you will look faintly demonic as you lurch in and out of focus.

Well, there you are. Who knows what 2021 will bring? I hope that you all stay healthy and safe.

*Fatboy Slim
** Working From Home, I cannot believe that I know all the lingo – LOL!

5/1/21