Tips for Working Virtually for Lawyers
BenKremer.com
Courts are an essential service for society. Over the last couple of weeks, courts have realised that they must continue to operate despite the current societal disruption, and more and more courts are moving online. They are making excellent progress despite the fact that this is — to many of them — uncharted ground.
Lawyers, and especially barristers, should not be frightened of this. It is quite possible to conduct conferences, interviews and even hearings from home. The following are some collected tips and thoughts that may be of assistance to barristers and solicitors working from home.
Some courts have published relevant information; for example:
Feel free contact me if you think anything should be amended or added.
Obviously, your connection to the internet is now critical; it is a work-essential item, and you should maximise its quality and reliability to ensure it is fit for purpose, and that you can get the best possible use out of it.
You should upgrade to a plan that can handle videoconferencing — ideally the fastest that your ISP offers. If you are on the NBN, you want a 100/40 plan (sometimes called "Premium" or "Premium Evening Speed") if possible.
The second part of that figure (ie the 40 in the 100/40) is your upload bandwidth. This represents how much information you can send from your computer to anywhere else on the internet. The higher the number, the more data you can upload at once: ie you can transmit better quality video and upload large files faster. Your upload bandwidth affects how good your video stream and audio stream appear to others.
Your upload bandwidth is particularly important if you have to share your connection with others (spouse/partner; children). If there are four people in your house participating simultaneously in four different videoconferences — all uploading video and audio at once — they will be contending for the same amount of upload bandwidth. If your plan doesn’t have enough upload bandwidth, one or more of you may experience degraded video/audio.
Note also that different NBN resellers ("RSPs") may "provision" differently: this is, roughly speaking, how much redundancy they allow before their users’ combined usage hits a cap. If the RSP does not provision enough, then if too many customers are using the service at the time, their combined usage will be capped, and they will not get the theoretical maximum speed their plan is capable of. Provisioning bandwidth is expensive, and one way that RSPs can offer cheaper plans is to under-provision to lower costs. Some useful RSP rating sites are: Canstar and Whistleout.
Note that other services will also compete for bandwidth. Online "cloud" backup services will upload data, so you should schedule them to run only at night. Streaming video services will compete for download bandwidth. Most plans have enough download bandwidth to handle multiple video streams, but if not, reduce the streaming video quality (720 rather than 1080) and/or prohibit their use during work hours.
Also note that the speeds are theoretical maximums; even on a top provider, in real life you may only get 80-90 Mbps download, and 30 Mbps upload, on a 100/40 plan.
It’s now also important to have redundancy: what happens if your main connection goes down, or is too congested either in your area, or your house?
If you connect to the net from home via NBN (or cable/ADSL), strongly consider getting a broadband wireless modem as a backup. (And vice versa; if you connect by wireless broadband, consider getting fixed line internet if possible.) That way, if there is a problem with your main link, you can switch to the backup.
Phone/tablet tethering can work, but can be hard on the device. I recommend a dedicated 4G broadband modem with its own data plan. You can buy these with pre-paid data plans, and purchase more data if you need it.
These are small, portable devices, and you can also use them to have your own fast internet in any courtroom or meeting room without having to rely on wifi provided by the building.
Standalone wifi modems (rather than USB plug-in models) are usually more versatile, and don’t need to run off your laptop, as they have their own built-in battery.
Another important consideration is to use a provider that is different from your mobile phone/tablet data provider, so if their mobile network goes down or is too congested, you don’t lose both your mobile phone/tablet AND your backup broadband. This is more important if you are not at home or in chambers. So if your phone is on Telstra, you should consider getting a broadband modem from a different provider such as Optus. Also note that many providers re-sell Telstra (eg Aldi, Boost, Woolworths), Optus (eg Amaysim, Coles, Dodo) or Vodafone (TPG, Kogan) networks, so there is no point using them as you will not have redundancy. You can read more about this on Whistleout.
Some examples of broadband modems are here:
Where possible, connect your computer to your modem/router via ethernet cable rather than relying on wifi. This will provide a more reliable link, and one which is less prone to interference.
If your computer does not have a built-in ethernet port, you will need to buy a "dongle" that plugs into whatever port you do have (USB A / USB C / Thunderbolt) and has an ethernet connection.
Another possibility for laptops is to buy a "dock", which plugs into a port and offers other ports (eg for an external monitor, mouse/keyboard and SD Card).
You may have noticed that the fixed line and mobile phone system has not been working well for calls, with dropouts or an inability to make a call. The worst seems to be on the hour and half hour, especially around 12pm, and seems to be because people are scheduling meetings on the hour and half hour, and the phone system doesn’t have enough surge capacity to cope.
Try to stagger the timing of your calls. If possible, try to use voice over IP (eg FaceTime audio), which doesn’t have the same problem.
These are thoughts based on my own experience. I will update to reflect any input.
Although it is still relatively novel, most courts seem to be enthusiastic to use video conferencing and other technology to run hearings
Although it is not as good as running matters the traditional way, it is still quite possible to run them remotely. The Western Australian Court of Appeal recently handed down a decision confirming that its experience with remote appeal hearings has been satisfactory, and that the inability to appear in the normal way is not sufficient of itself to justify an adjournment.
Some notable points are as follows.
My experience has been that software products that run on laptops / desktops / phones / tablets are often more reliable than dedicated videoconferencing hardware. I have found them to suffer fewer problems with echoing, freezing and dropouts. Software products are also much more accessible.
One issue that some have encountered is an inability to use Zoom or Microsoft Teams from within a remote desktop. This means that users have to turn off their VPN and have the meeting on their personal computer at home, rather than via their remote ‘office’ desktop.
You need to be able to communicate privately in real-time. This is the equivalent of passing notes and whispered conversations. Email is too slow for this.
The best way is either to use group chat software (ie group iMessage or WhatsApp chats) or have mobile phones in a conference call and have them muted unless you need to pick up and talk.
In a large matter, consider one group chat that includes whoever is on their feet, and a separate one for everyone else, to avoid distracting the speaker.
Useful products for text messaging are also Slack and Discord.
Make sure you keep a record of the chat, and also check whether you need to have a "Liability Limited" disclaimer at the beginning!
This is still being explored, and courts have taken different approaches: for example, currently the New South Wales Court of Appeal uses email for provision of authorities, while members of the Federal Court (such as Perram J) have been using dropbox for tendering of documents at hearing.
One thing to recall is that if you share a document by dropbox, it uploads files from your machine to a server, then from the server to the other person. This means the upload competes with your voice and image for upload bandwidth, and may cause stuttering/dropouts if the file is large and/or your upload bandwidth is low. Consider pre-loading documents into your dropbox folder before the hearing, so the uploading is complete by the time you start. Then when you move it into the location for tendering or handing up authorities, all that has to happen is that the server downloads it to the recipient at the other end. It won’t use your upload bandwidth at that point, and won’t affect your connection.
My experience is that things overall take about an extra 20% longer compared with doing things the traditional way. However, cross-examination takes more than this, especially if documents need to be shown and/or written on, or credit is in issue. It is harder to perform a cross-examination on credit by videolink. You also cannot approach the witness to point things out.
There is a small but noticeable delay, especially if connecting coast to coast, or internationally. This cannot be solved; it is a matter of physics, caused by the time it takes electromagnetic radiation to travel long distances. The delay is particularly difficult to manage when trying to avoid talking over someone in the Americas or Europe, especially when cross-examining.
Leave extra time to ensure someone has finished speaking to avoid over-talking them or cutting them off.
This is an issue; microphones should be muted unless talking. This is easier in an appeal but harder in a trial. Note that computer microphones are sensitive and will pick up breathing, typing on a keyboard and especially shuffling through papers, all of which are very distracting. Looking through a folder or notes can usually be heard by everyone, even though it would be completely innocuous in a courtroom.
There is a significant qualitative difference having video. In an appeal, it can be hard to identify which member of the bench is talking if you only have audio.
Courts will usually run tests, but that is no guarantee that things will work. Audio/video may freeze and people may drop out. Be prepared for adjournments to fix these, and if the problem persists, the court may choose to continue by telephone alone.
Don’t forget that the Federal Court has provisions that must be satisfied before an audio-visual link can be used: the Federal Court Act (sections 47 and 47A-47F) covers the issue, and section 47C imposes conditions that must be satisfied to use video or audio links. I expect all courts to revisit this and to issue practice notes.
There are a few steps required to prepare for a virtual hearing.
There are a number of different programs, which are generally not interoperable. You may have to download a client, and ensure it can access your camera and microphone. Always test run software ahead of time in case it decides it needs a mandatory update, and to check it is properly accessing the camera and microphone.
Always connect a few minutes before you need to, in case you have connection difficulties or software difficulties, or if you have to troubleshoot your camera or microphone. This is no different from arriving early at court to avoid problems with lifts or security screening.
Stay muted unless and until told to unmute. Be mindful of what is behind you. In court, the judge sees all. In a videoconference, everyone sees everything.
You should always be connected on charger, not battery power. Running off battery often activates energy-saving features, which may dim the screen or slow the processor to conserve power. Also, if you use bluetooth accessories like a headset, microphone, keyboard or mouse, make sure they are charged (and you have spare batteries if applicable).
Using a laptop on a desk generally involves poor ergonomics due to the screen placement - you have to look down all the time, which is hard on your neck and posture. Invest in a good external monitor (the bigger the better). Also, a proper external keyboard and mouse is much better than the built-in ones. These can be combined with a dock, so that the monitor, keyboard and mouse are plugged into the dock, and you just connect the laptop to it with a single cable, making it easy to move around.