COVID-19 & The Legal Profession: Watershed or False Dawn?

Author

Alexander Studholme

Senior Associate

It is no overstatement to say that the current COVID-19 pandemic is an unprecedented event in our lifetime which has had a wide-ranging impact upon the way in which we live our lives.  In turn, there has been a seismic shift in the way in which businesses have been forced to conduct their affairs and the legal profession is no exception.  While many of these changes amount to “quick-fixes” in order to allow legal business to keep its head above water and enable business continuity, it is also an important time for introspection – will the way in which we operate be permanently changed and, indeed, should it?  Can dispute resolution practices in particular adapt to a new way of doing business and, equally importantly, will they do so?

 

Can change be effected?

The first key question is as to whether or not the technology is available to make adjustments accounting for social distancing, more limited travel, and a fundamentally more “remote” way of working?

In terms of dispute resolution itself, it certainly appears to be the case that the profession has at its disposal technology that would enable fully online hearings to take place.  While as an emergency measure many arbitral and court hearings have been postponed, this is clearly not sustainable in the medium to long term, nor should it be.  For example, a wide range of companies already offer fully integrated digital solutions for managing the arbitral process online, many of which are in established use simply because of convenience.     However, it is important that the broader profession starts to utilise this technology at an early stage in the arbitral process, essentially gearing towards the final hearing being conducted fully digitally by ensuring that any Terms of Reference are appropriately drafted in order to contemplate a more digitised process.

The main challenge faced is the conduct of hearings themselves, getting sufficient buy-In from all parties for an oral hearing conducted by video-conference, utilising the already available software to share documents and exhibits across one consolidated platform.  This will no doubt be challenging, especially in the cross-examination of witness (where a significant number of advocates/counsel may rightly complain of the difficultly of conducting effective cross-examination over a video call), but it is safe to say that we already have the technological means of doing so. The already established Seoul Protocol on Video Conferencing in International Arbitration (available on the KCAB website[1]) provides important guidelines on such conduct of cross-examination, and could be readily adapted by arbitrators operating under various institutional rules to build a framework for effective conduct of online hearings.

While it appears at this time to be conventional wisdom that it is arbitral tribunals that are best placed to revolutionise quickly given the already highly flexible nature of the dispute resolution process, and there is little doubt that in absolute terms this is true, given the wide-reaching effects of the COVID-19 pandemic, conventional courts themselves are also looking at ways in which proceedings can be conducted online.  In particular, in New York judges already appear to be utilising Skype for Business in order to facilitate remote working and to keep the wheels of justice in motion.[2]   The leading example can be found in Mantle Law’s home jurisdiction, where the ADGM Courts have provided the World’s first fully digital state-of-the-art courtroom; lessons should be taken from the ADGM and replicated.

As there are already a significant number of technological solutions at the profession’s disposal, and inevitably many more to come, for the reasons outlined above it appears that the greatest shift will need to be that of attitude and the need to adapt will be incumbent upon the “human element” of dispute resolution.

 

Will change be effected?

Of course, in order for any meaningful change to occur there must be willing participants in a new model for the profession.  While much has been said about how COVID will change the way law firms themselves operate (in addition to courts and arbitral tribunals), this would involve moving to more remote working, utilising technology, and a large scale restructuring of business operations that have failed to fundamentally change for countless number of years.

We have seen, to a certain extent, how quickly law firms have been able to temporarily adapt during this pandemic.  One key reason why this quick adaptation has been possible is because, to a certain extent, some of the required systems/technologies were already in place – COVID has simply forced firms to use them more.  However, by way of counterpoint, the precise level of preparedness can be called in question by reference to the near-instant surge in popularity of the app Zoom.  If law firms (and indeed many other businesses across a variety sectors) were truly ready to adopt a fully remote working practice there would be no need to suddenly jump on an already developed app that few had previously heard of.  The reason for the need to utilise Zoom, and other software such as Skype for Business, is because for a number of firms video-conferencing facilities were integrated into the office setting, with complex suites fitted out with superlative technology – of limited use if you can’t actually set foot inside the building.

The reticence towards utilising a more digital/remote model is in part due to the cultural norms of the profession – a law firm without a large office, meetings, international travel, face-to-face business dealings has for the most part previously been unthinkable.  This, coupled with the fact that to shift to a fully functional remote business model would take a significant amount of investment in terms of both time and money on the part of major law firms, may mean that the COVID-19 experience alone will be insufficient to act as a catalyst for meaningful change.  This is where smaller, more agile firms can operate more effectively – the ability to implement change quickly means that a more dynamic set of working practices can be adopted almost immediately.

In order to drive down overheads, law firms could have been operating in a more remote manner for well over a decade; particularly following the previous Global Financial Crisis.  There was simply little will to do so.  There is nothing concrete to suggest that once we are through the pandemic things will not return to “business as usual” if that proves to be the easier option for most firms – of course time will ultimately tell, but it is yet to be seen whether the cultural predisposition towards traditional working practices will dissipate, or whether it is so ingrained as to prevent real innovation in circumstances where there is no necessity to do so.  Those best placed to do so may well be more boutique practices, with the ability to effect change swiftly and, in turn, will be able to pass the savings resulting from a more lean business practice directly onto clients.

[1] KCAB International / Resources

[2] Seyfarth / COVID-19: New York Courts Go Virtual