Electronic dreams

I have been watching with interest the chatter on the internet, particularly LinkedIn, as to how remote hearings might take place, particularly by video a process which could have profound implications for the way that justice is conducted in this country, which will endure beyond the current public health emergency.

By the way if you read this blog and are on LinkedIn, please feel free to send me a connection request as it seems to be on that platform that many of the most interesting conversations are to be found.

The latest guidance that I have been able to find from the HMCTS as to how this might play out in the months to come can be found here:

https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak#communication-between-legal-professionals-and-clients

Further guidance on hearing etiquette can be found here: Guide_on_joining_court_hearings_by_video_call_or_phone_27_March_2020.

Although predicting the future is, often a fruitless pursuit, it seems that this is a tool whose use can only increase.

I will also suggest that its adoption along with paperless working, has the potential to greatly reduce overheads for practitioners, with the intriguing possibility that this might in turn reduce costs for consumers.

One area of costs work where technology has already moved on relates to the electronic bill of costs which has now been up and running as a tool for the assessment of costs for some time.

There remains a tail of older cases, which include partly old style and partly electronic bills, and areas of work which are excluded from the use of electronic bills. But again, venturing a prediction it is the sort of innovation whose use can only increase.

I therefore read with interest the ACL Roundtable report on the use of the electronic bill which can be found here ACL_Electronic_bill_roundtable_report

Some of the particularly well informed observations which were made that resonated with me I have selected below.

On the need to buy a top of the range computer, and just as saliently to know how to operate it:

Claire Green: It is not a level playing field any more. If you have an advocate who is more skilled in the use of the computer, they can think ahead and make the legal argument while they are manipulating the data and directing the judge to where they need to go. The advocate that does not have that ability is immediately at a disadvantage. Also, people’s laptops all work at different speeds, so you can be sat there while one advocate is waiting for their laptop to catch up with the other advocate’s. These are small but very practical difficulties.

Colum Leonard: That is not an uneven playing field; that is different mental skills, which is true in all advocacy. The better guys tend to win. I have no doubt that all of these problems can be addressed by case management and maybe by tweaking the practice direction in some respects.

On the potential for a costs draftsman to hide time in the bill of costs and for that time to be rediscovered:

Jennifer James: The one that came up in the mock assessment was letters to the GP, where there were ‘letters to the GP’, ‘correspondence with the GP’ and ‘letters to Dr X’. They have managed to describe the same thing about 10 different ways, which is very counterintuitive and suggests it may have been done on purpose to hide things. From the Costs Lawyer’s perspective, it is giving you a very powerful new advocacy tool that you can filter things out and say to me: ‘Master, I want you to look at this.’

On the current disconnect between what lawyers running the case do and how the bills quantifying their work are prepared:

Alison Paget: We might have missed a fundamental point when we have been looking at bill preparation itself: fee-earner education on how they are recording their time. The level of block recording that I am still seeing does not sit with an electronic bill. It is probably a national issue. We need to get back to basics, think about how solicitors record their time and re-educate from the ground up. Other than that, the experience is positive in terms of being able to utilise and deal with the actual electronic bill, and maybe manipulate figures. However, there still seems to be a real lack of knowledge and understanding of how the Excel document itself works.

On the utility of the electronic system of assessment to the insurance industry:

William Mackenzie: We are quite excited about the electronic bill. We are a predominantly paying party, but we are looking to the future
and trying to see where we can take this. At the moment, you can dive into the figures and there is more data. We are trying to gather a whole load of bills so that we can identify trends. We will be able to see what is going on with solicitors, where the bulk of their costs are and how we can work with our insurers to limit their exposure and litigation spend. Once we have a lot of data together, I think we will be quite excited to see what we can do with it. In terms of the paying party, we definitely think that it speeds up the process. Anecdotally from our fee-earners, we think it is maybe 25-30% quicker to review that bill, draft your advice and actually come up with your settlement parameters. We like the ACL bill and we like having the PoDs within the actual document. We would like to see a bit more uniformity because people are drafting their bills in different ways. It would speed up the process if everyone could draft it in the same way. Echoing the comments that fee-earners are not time-recording correctly, drafting the bill does seem to take longer. However, we think this is the future.

And on the challenges for the judiciary:

Chris Lethem: My concern is that, while the regional costs judges had some very good training, it was quite some time ago. I do not see a lot of training going on within the Judicial College at the moment. I am just wondering how well-equipped the judiciary is to deal with electronic billing outside the SCCO or the regional costs judges. There is a double hurdle: for some of my colleagues, actually knowing how to work Excel and use filters, and understanding the bill.

Claire Green: That has to be the starting point. People have to upskill themselves on the basics of the use of something like Excel.

Ian Besford: I suspect the powers-that-be do not see a need for Excel training at this moment in time. They are concentrating on Word-based systems.

Chris Lethem: If we are going to have an electronic bill, we have got to have judges who know how to work it. I think there is a window of opportunity.

It may be that hand in hand with the use of remote hearings for assessments of costs using electronic bills, will go the adoption of other tools: digital bundles with hyperlinks for detailed assessments being one of the most obvious developments.

Excel365 for Dummies, anyone?

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