Times of necessity have rocketed innovative practices into daily life a lot sooner than many expected
It is not an understatement to say that COVID-19 has changed life as we know it. The legal industry is no exception.
We have seen how law firms have had to make unprecedented financial decisions in this time of crisis: the big City law firms have rolled out salary cuts (across the board, not only at the top of its business), deferred partner profits, furloughed staff and imposed delays to promotions and pay rises.
These are circumstances which no law firm could have foreseen, but many are resilient and will survive this time of crisis. Now, more than ever, the ones that will come out the least scathed from the crisis are the firms that are able to adapt and innovate in the face of restrictions on the traditional ways of lawyering.
The pandemic has brought a huge number of challenges to the legal industry. The massive question on the lips of litigators when the word lockdown was first brandished was, “will my hearing go ahead, and if so, how?!” Specific guidance has been published by the relevant courts and tribunals, but the general rule is a hearing will go ahead remotely if it is reasonable and appropriate for it to do so.
Electronic bundles in preparation for a court hearing are not entirely new — the electronic court filing system, CE-File, has been an essential component of litigation procedure in the Queen’s Bench Division for a number of years, and has most recently been introduced for use in the business and property courts.
When it comes to hosting a remote hearing, technical teething issues are virtually unavoidable especially with video-conference platforms currently in ultra-high demand. Feedback from those that have had remote hearings in the last few weeks is that judges are extremely understandable and practical when it comes to technical issues, and the take home tip is to have the opposing counsel’s mobile number to hand in case of emergencies.
Technical issues aside, it does seem a real possibility that e-hearings could become commonplace in the future. Obviously, it may not be suitable for all cases. For urgent applications, instead of having to run down to court at the last minute, perhaps remote hearings are a better alternative for all and provide an opportunity for more efficiency in our overburdened court systems.
For lawyers whose work involves deeds, there are serious logistical challenges when in a state of lockdown to executing deeds which typically require a “wet ink” signature and a physical witness.
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For a while now, electronic signatures have been a valid substitute to a wet ink signature, and is technology that a number of law firms have been using for some time before the pandemic hit. However as things stand, the Land Registry does not accept electronic signatures on the majority of its transactional deeds, including mortgages. The Land Registry is currently developing a new digital mortgage service, however, in the meantime extensive lobbying of the Land Registry is underway with hope that a concession will be made to avoid this logistical problem.
The Law Society have concluded that a deed can be validly executed, witnessed and delivered wholly electronically. Yet, this does not negate the requirement that a signature (be it wet ink or electronic) must be witnessed by a person in the same room as the signatory so as to visually witness the signing. The Law Commission say video-link is not sufficient.
As yet, there is no emergency measure to circumvent this issue, although the longer the lockdown continues, the more it seems obvious that a workaround is essential. Modernisation may not have previously been a priority for this area of the law, if the system wasn’t broken why fix it? But the obstacles raised by the pandemic and the ease that legal electronic execution of deeds will bring, will undoubtedly mean this becomes future standard practice.
In terms of client onboarding, the pandemic is absolutely no reason for a slack to law firms’ stringent compliance policies. The whole process has become electronic. Video calls have replaced the requirement for face-to-face meetings, and new software allows for identity documents to be checked and verified. While it is inevitable that these technologies would have soon become the norm for the industry, these times of necessity have rocketed these innovative practices into daily life a lot sooner than many expected.
It’s not simply the way lawyers work that has seen rapid innovation during the period of lockdown. The legal workforce has adapted well to working from ‘the virtual office’.
In fact, many are seeing more of their colleagues now than they would ordinarily do despite sitting just across the office from them. Bi-weekly half an hour video calls have replaced 15-minute fortnightly catch-ups. Networking breakfasts, lunches, coffees and drinks have not been pulled from the diary either. Lawyers are certainly still keen to socialise.
For a while now, many law firms have been making the shift towards ‘flexible working’, however the pandemic has been a wake-up call to many firms that were rapidly distributing laptops in the days before lockdown. Despite the inevitable technical issues associated with preparing an entire workforce to work from home for the foreseeable future in such a short window, the transition seems to have been quite smooth. This is sure to cause pause for thought to big City firms about endorsing an agile workforce in the future.
In the three short weeks of lockdown to date, lawyering has faced a technological overhaul. The firms that are able to capitalise on this opportunity to create a seamless virtual way of working that maintains a quality for its clients, are those that will best weather the consequences of the pandemic. There is certainly scope in these times for some firms to forge more innovative, efficient business models once all this is over.
Katie Mehew is a paralegal at a City law firm. She aspires to become a solicitor.