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Gray, Philippe Doyle --- "From science fiction to everyday fact: Navigating the new normal of technology in practice" [2020] PrecedentAULA 54; (2020) 160 Precedent 8

FROM SCIENCE FICTION TO EVERYDAY FACT

NAVIGATING THE NEW NORMAL OF TECHNOLOGY IN PRACTICE

By Philippe Doyle Gray

The COVID-19 pandemic has demanded enormous change in an astonishingly short amount of time. No judge may wish to see practitioners, witnesses, or court staff working from their offices or homes, let alone from their bedrooms in pyjamas. But public institutions such as the courts must do all they can to facilitate the continuation of the economy and essential services of government, including the administration of justice.^[1]

To help colleagues cope with this crisis, I have drawn from my experience of using technology to practise law as a barrister. For the last seven years, I have conducted every appeal, trial, motion and other court appearance with only an iPad and a notepad. For the last six years, my executive assistant and I have worked remotely from our homes one or two days per week. For over three years, I have advised orally in video conference. This year, I have appeared in an appeal, hearings, and a mediation via video conference.

My goal is to get you comfortable and proficient with the essentials over a five-week technology blitzkrieg.

1. LIGHTNING LEARNING: ESSENTIAL EDUCATION

When applying technology to legal practice the best investment lawyers can make is in themselves. There is no substitute for training and education. You cannot learn to drive a car merely by buying one – and technology is no different.

Self-education is an essential skill to protect yourself. Self-education also saves time, money, and effort. While I enjoyed face-to-face education before social distancing, I also came to appreciate online, on-demand learning, especially for mastering technology. Multimedia or web-based programs now satisfy continuing education statutory requirements in most Australian jurisdictions.^[2]

There are three free or low-cost online, on-demand education providers that I have used for many years and commend to every lawyer: YouTube, LinkedIn Learning, and the NSW Bar Association.

‘The University of YouTube’ is the vernacular for learning a skill through watching online videos and becoming competent in that skill without formal education or help from others. YouTube^[3] overflows with time-wasting, valueless videos. However, provided you know how to find them, there are also trusted sources of significant intellectual and practical content dealing with matters related to legal practice, conducted by persons qualified by practical experience in the subject covered and relevant to a lawyer’s professional development needs.^[4]

Among the best channels are those produced by Steve Dotto and Dr Thomas Roedl. Steve Dotto spent over 15 years hosting and producing DottoTech on Canadian television before moving to YouTube to focus on delivering excellent how-to content each week. For example, he recently produced 16 videos covering all aspects of video conferencing using Zoom.^[5] Dr Thomas Roedl worked in various big businesses through which he focused on using technology to increase productivity in the office.^[6] He shows off what can be done and how to do it in regular videos, with an emphasis on digital note-taking (more about that below).

Finding trusted sources that meet statutory requirements requires you to search YouTube as you would search the internet: formulate a search term with the pattern ‘How to [verb] [software] [hardware]’ for example, ‘How to change background Zoom iPhone’; optimise that term by using search predictions; and filter results.^[7]

Lawyers absorb information quickly, so controlling playback speed is essential to make the best use of your time. If viewing YouTube on a desktop or laptop computer, install a browser extension^[8] so you can accelerate (I find 1.25 times is best) or slow down the playback speed. If you intend on viewing YouTube on a smartphone or tablet, then install the YouTube app^[9] which enables you to control playback speed the same way.

LinkedIn Learning^[10] (previously known as Lynda.com) is online learning focused on speed. For example, you are about to file a court document when you realise the court rules require a numbered list which alternates between numeral and letter. Microsoft Word 2019 does not provide that option. So, you navigate to LinkedIn Learning, search for training as you would any other internet search, and find a course called ‘Word 2019 essential training’ which has a section titled ‘Creating bulleted and numbered lists’. You click on that subject, revealing two lessons on creating numbered lists and formatting them how you like, and learn the necessary skills in only six minutes and nine seconds of dedicated instruction.^[11]

The NSW Bar Association offers online continuing legal education by barristers for free to its members, and for a small charge to judges, barristers from other jurisdictions, and solicitors, collectively known as ‘Class B members’. Class B membership offers an all-you-can-eat buffet of online, on-demand continuing education for less than $170 per year. The online library is extensive and usually includes a 60- or 90-minute video presentation with downloadable materials and resources. After becoming a member,^[12] navigate to CPD Streaming^[13] and use the following search terms to find courses: ‘digital security’, ‘paperless’ and ‘technology’.

2. HOW I USE MY IPAD WITH MY COMPUTER

iPads are serious legal tools. Since 2010, I have been using my iPad to migrate towards using less paper and in December 2013, I conducted my first trial using only an iPad and a paper notepad. Since then, I have conducted every court hearing using only an iPad and a paper notepad, which has included special leave hearings in the High Court, appeals in the Federal Court and the Court of Appeal, and trials in superior and mid-level courts, among other forums.

In court I use my iPad for consumption and in chambers I use my laptop for production. Cloud storage links all information so it is always synchronised (note I am not just saying that my devices are synchronised – what is synchronised is the information). Having prepared on my laptop in chambers, I go to court with my iPad, leaving behind my executive assistant transcribing a chronology on her desktop computer that I have just dictated. By the time the judge comes on the bench, the updated chronology appears on my iPad, ready for me to make handwritten annotations with my Apple Pencil. After court I return to chambers, open my laptop, and see the chronology with my handwritten annotations.

Regardless of how much information is stored on the iPad, it always weighs the same – I usually carry the equivalent of 1,000 leather-bound law reports and textbooks. When writing this article, I counted 29,470 cases in my iPad library, including every case reported in volumes 1–265 of the Commonwealth Law Reports..

Whether as part of my brief or in my library, all information is searchable; I can search vast volumes of information in seconds. For example, on several occasions I have searched more than five days’ of transcripts for every instance of a particular word in about 15 seconds.

Opening addresses and closing submissions flow better when I link ideas or information together electronically, for example, by inserting hyperlinks beside a paragraph in the statement of claim which, when I tap them with my finger, take me to the paragraphs of the affidavits proving the pleading, and to the pages of the transcript recording cross-examination.

Useful apps

PDF stands for Portable Document Format, but I prefer to think of it as Paper in Digital Format. The most useful iPad app I use is PDF Expert,^[14] which allows me to carry my briefs and library, and anything else, in PDF format, enabling me to annotate and highlight the document as if I were using a pen, sticky notes and highlighter.

ScanPro App^[15] turns my iPhone and iPad into a scanner. An undisclosed piece of paper is about to be tendered into evidence, or a recently signed minute of order is about to be handed up, but before it goes I can scan it in seconds, automatically apply optical character recognition (OCR), upload it to my cloud storage, and share it with my instructing solicitor and client while the judge is still reading the original.

iThoughts^[16] is all about mind mapping. A mind map is a diagram used to organise information visually. As with pen on paper, I can sit in a café and scribble my ideas on case theory, quantum, cross-examination, or settlement on my iPad. But unlike with pen on paper, I can relocate an idea on the page while my existing notes automatically shift to make space. I can add links to legislation and to my brief. If I am in a quiet place, I can dictate and my words are transcribed in real-time. Back in chambers, I can edit the mind map on my laptop and my executive assistant can edit it on her desktop computer. This very article was outlined on my iPad and back in chambers on my laptop I exported the outline into Microsoft Word, avoiding the need to re-type.^[17]

Notability^[18] is for digital note-taking. I love writing on fine paper with one of my fountain pens, but when attending continuing education or for some client conferences, I prefer to use Notability so that I have an audio recording of the lecture or client meeting synchronised to my handwritten notes. Afterwards, if I want to hear what was being said at the precise time I was jotting something down, I simply tap on what I wrote and the audio plays back.^[19]

3. REMOTE HEARINGS: TELEVISION IS NOT RADIO WITH PICTURES

Before March 2020, the use of video conferencing in court hearings was rare. Since then judges have routinely employed video conferencing in remote hearings, and we are all discovering that these hearings differ from traditional in-person hearings in unexpected ways. Video conferencing, much less telephone attendance, fails to capture the full sensory experience of courthouse architecture, wigs and robes, and other aspects of going to court, and so fails to impart the solemnity of the occasion. Video streams displaying only those speaking may make other participants, especially the non-lawyers, feel invisible and ignored.^[20] Gone is passing the handwritten note. Gone too is standing up at the bar table to get the judge’s attention. Television is not radio with pictures.

Under ordinary circumstances, one may not remotely contemplate (no pun intended) imposing such an unsatisfactory mode of trial as by video conference on a party against its will. But these are not ordinary circumstances and we have entered a period in which much around us is, and will continue to be, unsatisfactory.^[21]

These nuances raise issues for solicitors about client engagement management, for barristers about advocacy, and for judges about whether a trial is fair^[22] and whether justice should not only be done but should be seen to be done.^[23]

When participating in a hearing by video conference, a vital skill to master is how to instantaneously transmit private information absent the traditional whisper, sticky note or tug of the gown. The instantaneous transmission of information requires a practical grasp of transmitting electronically stored information (ESI).

The usual ethical obligations and security issues apply to video conferencing, but this mode of trial raises additional, unique problems. Elderly and infirm clients often struggle with anything more complicated than voice calls, text messages, and sending photographs. Children and clients from low socio-economic backgrounds often struggle to afford a smartphone with sufficient connectivity to transmit the significant quantities of ESI required during a video conference. These variations affect whether a person participating in a hearing by video conference suffers from the limitations of their device or their skill. For example, an elderly client may be apparently watching and hearing a video stream from their home but cannot simultaneously communicate privately with their solicitor. This becomes a matter of justice being seen to be done if the elderly client is too embarrassed, shy or reserved to be proactive if they lose the video stream and cannot adequately see or hear the proceedings.

Without forethought and planning, an apparent saving of cost and effort in travel may be offset by the loss of images or sound. It might not be enough to rely on a client’s/witness’s/litigant’s laptop, and it may not be any better to supply them with a spare iPad. Perhaps the best solution is for the client to sit beside their solicitor in the solicitor’s office.

In a remote hearing, how do we cope with a large volume of documents? The present method adopted by many courts is to use paginated bundles. Sometimes this is a court book, which is a repository of all the documents likely to be referred to with each page bearing a unique page number, usually printed on paper and delivered to court and the other participants. These paginated documents are then referred to as one would in a traditional courtroom, for example saying to the witness ‘Look at the court book and turn to page 74’. There are several problems with this method. Controlling the witness is impossible; if you must courier a court book to a witness before the hearing there is nothing stopping them from looking through the papers ahead of being examined or cross-examined. I have heard the solution to this is to courier a stack of sealed envelopes bearing unique labels and request that the witness open an envelope only when asked.^[24]

Creating paginated court books and sealing documents in envelopes takes time and effort. While the time and effort might be justified if it is done once, say for a final hearing, it is not justified for every stage of litigation, such as when briefing counsel or drawing affidavits with exhibits. After all, the pagination from brief to court book will change which will require reconciliation, thus increasing cost and introducing opportunities for error due to multiple handling. The need for pagination and sealed envelopes arises only because it is implied that everything must be in paper.

Another problem is that above a certain size, court books, photographs and text documents must be printed and delivered because their electronic versions are too large to transmit. For example, you cannot attach a 200MB court book to an email, let alone send it by text message.

But what you can easily do, even by text message, when you have a video, sound recording, or a large court book, is transmit a string of characters via a uniform resource locator (URL). A URL is a string of characters that unambiguously identifies a particular resource on a computer network.

To share large court books and transmit large amounts of ESI instantaneously is to assign a URL to the electronic version of the court book (the ESI). This is done by storing the ESI on a computer connected to the internet in a way which generates a URL. Such a computer is called a file server. There are many solutions for this, but one way is to take advantage of cloud storage services like Dropbox, OneDrive, Google Drive, and iCloud Drive – businesses which rent out space on their computers to store your ESI in a way optimised for sharing URLs. If you are not comfortable using these (or other) cloud storage services, then you can always purchase and operate your own computer acting as a file server in your office. This was previously very popular until it became clear that doing it properly required significant time, money and effort beyond the reach of small law firms.

Provided your computers and the internet connection to the cloud services are properly configured, storing electronic information with a reputable cloud storage service is like storing your money with a reputable bank.^[25] There is always the risk the bank might be robbed, but this is a lesser risk than storing cash under your mattress.

The usual ethical obligations of using technology in legal practice^[26] apply to video conferencing, but in addition, this mode of hearing raises unique problems. First is the question: which cases are suitable for hearing by video conference? This issue involves weighing several factors, many of which have been the subject of judicial consideration in recent decisions^[27] which reflect a diversity of opinion, consistent with remarks I have heard made by judges when speaking extra-judicially. Minds differ. We are all working it out as we go.

Another factor is the ease by which a witness’s testimony may be perverted because of the place from which the witness is participating by video conference. For example, during a hearing of a claim for personal injury in which a plaintiff is giving evidence by video conference from their residence, there is a real risk of self-censorship if a plaintiff is, understandably, embarrassed about being overheard by their children when testifying about their psychiatric illness or sexual dysfunction. Take care to think about the location from which the witness is participating by video conference.

Tips to make video conferences easier and better

1. Mute your microphone when you are not talking.^[28]

2. If using a laptop with a built-in webcam, elevate the laptop with a stack of books and adjust the screen so the webcam is slightly above your eye-level and the viewing angle is looking down on you – nobody wants to look up your nostrils.^[29]

3. Wear headphones to minimise audio feedback and improve sound quality for you and others.^[30]

4. When your camera or webcam is not in use, cover it with Blu Tack. It will not matter if the video conference software is automatically configured to start your camera before you get out of your pyjamas because the Blu Tack blocks the camera lens and all that others will see is a black screen. Pretend there is a technical problem while you make yourself presentable – then peel off the Blu Tack.

CONCLUSION

Courts in the near future may be very different from the recent past. Some changes are likely to be permanent. Embracing change now may prove to be the most efficient long-term way to facilitate the just, quick and cheap resolution of the real issues troubling clients.

Philippe Doyle Gray is a highly experienced commercial barrister at 8 Wentworth Chambers in Sydney with nearly 20 years’ experience at the bar. His areas of practice include commercial law, equity, professional negligence, professional discipline, and legal costs disputes between lawyers and clients. A former Honorary Secretary of the NSW Bar Association, he is a progressive and forward-thinking barrister with an avid interest in the intersection of law and technology. PHONE (02) 9232 3953 EMAIL Philippe@PhilippeDoyleGray.com WEBSITE www.philippedoylegray.com.

^[1] Adapted from Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, [5] per Perram J.

^[2] NSW, Victoria, SA, and Tasmania: Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 (NSW and Vic), cl 8.1.1, Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 (NSW and Vic), r6A(a); Legal Practitioners Education and Admission Council Rules 2018 (SA), Appendix C, r1.2(d)(ii); Law Society of Tasmania Continuing Professional Development Scheme Practice Guideline No. 4, para 2.4(c); Queensland Law Society Administration Rule 2005 (Qld), r48(2). It would appear that barristers practising in Queensland are confined to viewing live or recorded CPD activities, hosted by the Bar Association of Queensland website or an external provider, with a maximum cap of three points per year: Bar Association of Queensland CPD Policy commencing 2016/2017, accessed 4 July 2020, <https://www.qldbar.asn.au/member-cpd>. WA solicitors and barristers must attend a CPD activity through an approved QA provider, failing which they must seek approval on a case-by-case basis after submitting a CPD Form 3 Application and paying a $60 fee: Legal Profession Rules 2009 (WA), rr13C(3)(b) and 15(2).

^[3] <https://www.youtube.com/>.

^[4] Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 (NSW and Vic), cl 7, Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 (NSW and Vic), r6; Legal Practitioners Education and Admission Council Rules 2018 (SA), Appendix C, r1.2(a)–(c); Law Society of Tasmania Continuing Professional Development Scheme Practice Guideline No. 4, para 3.6; Queensland Law Society Administration Rule 2005 (Qld), r48(1); and Bar Association of Queensland CPD Policy commencing 2016/2017, cl 4c. WA solicitors and barristers are not required to undertake education meeting those intellectual and other standards as a distinct obligation: Legal Profession Rules 2009 (WA).

^[5] dottotech, ‘Zoom Video Conferencing’ (YouTube, 2 June 2020) <https://www.youtube.com/playlist?list=PLoChQlVtu_g4DW2wLt2otCa636kP6x5K_>.

^[6] <https://www.youtube.com/user/TomSolidOfficial/feature>.

^[7] You can watch this method demonstrated on YouTube at <https://youtu.be/sCddrLwH-fc?t=38> and <https://youtu.be/sCddrLwH-fc?t=360>.

^[8] Chrome: <https://chrome.google.com/webstore/detail/youtube-playback-speed-co/hdannnflhlmdablckfkjpleikpphncik>; Firefox: <https://addons.mozilla.org/en-US/firefox/addon/videospeed>; Safari: <https://apps.apple.com/us/app/accelerate-for-safari/id1459809092?mt=12>; Edge: <https://www.videospeedup.com/edge>.

^[9] iPhones and iPads: <https://apps.apple.com/au/app/youtube-watch-listen-stream/id544007664>. Other devices: <https://play.google.com/store/apps/details?id=com.google.android.youtube&hl=en_AU>.

^[10] <https://www.linkedin.com/learning/>.

^[11] LinkedIn Learning, ‘Word 2019 Essential Training’ (Course, 24 September 2018) <https://www.linkedin.com/learning/word-2019-essential-training?trk=learning-serp_learning_search-card&upsellOrderOrigin=homepage-learning_learning-search-bar_search-submit#main-content:~:text=creating%20numbered%20and%20bulleted%20lists>.

^[12] <https://nswbar.asn.au/the-bar-association/become-a-member>.

^[13] <https://cpd-streaming.nswbar.asn.au/dashboard>.

^[14] <https://pdfexpert.com/ios>.

^[15] <https://scanproapp.com>.

^[16] <https://www.toketaware.com>.

^[17] You can watch this demonstrated on YouTube at <https://www.youtube.com/watch?v=sULRyFM3Izk&feature=emb_logo>.

^[18] <https://www.gingerlabs.com>.

^[19] You can watch this demonstrated on YouTube at <https://youtu.be/6S66NPvCNSU?t=179>.

^[20] P Magrath, 'Remote but transparent? Open justice under the lockdown', The Lawyer (17 April 2020) <https://www.thelawyer.com/remote-but-transparent-open-justice-under-the-lockdown>.

^[21] Adapted from Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, [25] per Perram J.

^[22] These issues have been the subject of attention in the following cases: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382; Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486; Kahil v R [2020] NSWCCA 56; JKC Australia LNG v CH2M Hill Companies Limited [2020] WASCA 38; Quince v Quince and Anor [2020] NSWSC 326; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504; Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539; Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614; Sheahan & Lock v Chan & Ors [2020] SADC 59; Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664; Australian Securities and Investments Commission v Wilson [2020] FCA 873; Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732; Tetley v Goldmate Group Pty Ltd [2020] FCA 913; Rooney v AGL Energy Limited (No 2) [2020] FCA 942; cf Antov v Bokan (No 2) [2019] NSWCA 250.

^[23] R v Sussex Justices, ex p McCarthy [1923] EWHC KB 1; [1924] 1 KB 256, 259 per Lord Hewart CJ.

^[24] P Hogan and S Hall, Remote Advocacy: Questioning Witnesses (Presentation for the NSW Bar Association, 25 June 2020).

^[25] For more about cloud storage, useful resources can be found at <https://www.cloudwards.net/cloud-storage>.

^[26] P Doyle Gray, ‘Digital security and lawyers’ duties’, Precedent, Issue 139, March 2017, 24–8.

^[27] See above note 22.

^[28] J Der Matossian, Registrar, Digital Practice, Federal Court of Australia, private conversation, 18 August 2020.

^[29] A Djurdjevic, 3 Wentworth Chambers, Sydney, private conversation in July 2020 when I was leading him in the Court of Appeal.

^[30] A Donlon, Technical Support Officer (Multimedia), NSW Department of Communities and Justice, private conversation, 18 August 2020.