By Bonnie Eslinger

Law360, London (April 9, 2020, 6:24 PM BST ) Time ticked silently as the lawyers participating in a London hearing via an online audio conference waited for the court's ruling, the only sign of the judge's presence a tiny picture on their computer screens.

A few minutes later, the sound of the judge's voice pierced the quiet.

"I think I have inadvertently been on mute," he said. "Shall I begin the judgment again?"

With the fast spread of the coronavirus, courts across London and beyond are quickly moving legal proceedings out of the courtroom and into the virtual world, where judges, lawyers, witnesses and even members of the public participate from separate locations by telephone and videoconferencing.

The speed of this transition has been remarkable, although not without some technical issues and gaffes. For some participants, it's been a steep learning curve.

At the beginning of one court hearing, a judge asked a colleague to adjust his camera angle.

"Right now, I've just got a very good shot of your tie," he said.

Karen Mitchell, a senior associate with Eversheds Sutherland, said while there have been numerous benefits to streaming court hearings over Skype or other platforms, there are also the unavoidable hitches.

"The judge actually dropped off the conference owed to connectivity issues," Mitchell said. "This I suspect will be something that occurs again and again, and requires patience and professionalism in waiting for others to rejoin the hearing."

Patricia Nacimiento, who co-heads Herbert Smith Freehills' German dispute resolution team, touted the success of the High Court's first remote hearing — over $530 million in frozen assets — which was held via Zoom and wrapped last week. The smooth way the proceedings were conducted, she said, could be attributed to a combination of factors, including the judge's willing embrace of the technology, the help of an IT consultant and a pretrial test run.

Nonetheless, there were still some missteps, including a hearing participant who found himself spotlighted by Zoom's "active speaker" feature because of some paper shuffling.

"There was one person making a lot of noise, so he had to be told to mute his mic," Nacimiento said. "It's funny, if a person starts making noise, then this is the person you see on screen even though it is not the person's turn to speak."

Adapting court practices to this new normal has resulted in some creative problem-solving. That included figuring out how instructing solicitors could pass notes to barristers during the proceedings, especially while the lawyers were making arguments. Many law firms have taken to using group text messaging applications to fill the gap historically handled by paper notes. Now barristers have to look into their computer cameras as they speak, while still keeping an eye on their cell phones.

During one recent High Court proceeding held via videoconference, a barrister hesitantly confided to the court that he was using WhatsApp to communicate with his solicitors when asked by the judge if a client would agree to a particular timetable.

"I think the answer is we agree, but I'll tell you if my WhatsApp suddenly beeps with an objection to that," the barrister said, adding an apology. "I hope that's not the wrong thing to be doing here, but it's the quickest way to get instructions."

Linklaters LLP partner Tom Lidstrom, who also participated in the first High Court virtual trial before Judge Nigel Teare, said his firm and the barristers it was working with also turned to WhatsApp to message one another.

"The usual Post It notes went virtual along with every other aspect of the trial," Lidstrom said. "It worked effectively and efficiently."

Nonetheless, taking legal proceedings out of the courtroom and into the 21st century has left some lawyers grappling with whether they can leave behind some traditional protocols.

At the start of one videoconference, two barristers questioned whether they should rise when the judges logged into the Zoom proceedings.

"Do we have to stand up when they appear?" asked one.

"I don't think so," the other replied from his dining room table. "I'd hit my head on a light if I did."

Norton Rose Fulbright partner Holly Stebbing said such lighthearted quandaries aside, her law firm's experience of remote hearings has been positive, aided by collaboration between the parties and the court to find practical solutions to keep the wheels of justice turning.

"It is hoped that the rapid deployment of technology in response to the challenges posed by COVID-19 will lead to long-term efficiencies in court procedure," Stebbing said.

Linklaters' Lidstrom said his experience with a virtual trial — with each participant in a different location across four countries on three continents — showed that even a complicated case could be conducted remotely.

"Systems and procedures which might otherwise have taken many months (or even years) to get tried and tested were rolled out for use in a few short days," Lidstrom said in an email. "There are valuable lessons in this about the need for adaptability — and the potential use of IT solutions (even after the current crisis has passed) in future hearings, especially ones of a procedural nature."

Rupal Nathwani, a senior associate at Dentons, also said she could see a future for the courts that included more videoconferencing.

A recent Court of Appeal hearing conducted over Skype moved along with notable efficiency, she said.

"The setup of a courtroom was replicated in remarkable fashion," Nathwani said. "Both the audio and video quality were excellent and, despite some technical difficulties throughout whereby connections were lost and attendees were required to 'redial' back in, the hearing went ahead without any huge difficulties."

Eversheds Sutherland's Mitchell said she's also seeing some added benefits to conducting court cases by videoconference.

"Ordinarily in the courtroom, your view of the judge is obscured either by distance or that they are blocked by counsel," she said. "With the remote hearing, it was much easier to gauge the judge's reactions as her face was so close to the screen."

But while some proceedings are more easily done remotely, there's still a case to be made for others to be held in person, said David Wolfson QC of One Essex Court.

One remote hearing he recently participated in was relatively trouble-free, he said, with the parties quickly learning not to speak over one another.

"Of course, you don't get the body language, but I think it works OK, provided everybody else is on mute and you obey the standard protocols," Wolfson said.

However, he said a scheduled trial was rightly adjourned because the case had a multitude of witnesses, was expected to involve the playing of recorded telephone calls between financial brokers, and involved allegations of dishonesty.

"I think it's also harder for a judge to come to a decision on somebody's credibility if you don't actually see them in front of you," Wolfson said. "Now, courts have had witnesses on video screens before, but when it's all about honesty and dishonesty, I think it is more challenging."

Barrister Simon Salzedo QC of Brick Court Chambers also said lawyers don't get quite the same interaction with the judge in remote proceedings, which can be problematic when making complicated submissions.

"I think it does slightly damage that ability to feel how things are going as we subconsciously take in somebody's body language," Salzedo said. "But in terms of fairly straightforward legal arguments, it works fine."

Herbert Smith's Nacimiento said while there were clear advantages to holding court proceedings in person, these were extenuating circumstances.

With proceedings in court, "you can watch everyone at the same time and you see people's direct reaction and it's not just one person that you can see at the time," she said. "But having said this, if the alternative is to not have a trial at all, so what? You deal with this."

Cross-examining witnesses in a different location also poses a challenge, especially when combined with a need for translation, Latham & Watkins LLP partner Philip Clifford QC said. Recording the questions and testimony can help resolve any disputes as to what was said, he suggested.

Still, the COVID-19 crisis may ultimately prove to be a catalyst for the court system to move toward doing more legal work remotely, according to Salzedo.

Videoconferencing, he said, provides one added benefit to the judges on the bench.

"It makes it a bit harder for barristers to jump up and interrupt each other," Salzedo said with a chuckle.

--Editing by Marygrace Murphy.

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