Legal profession keen to retain Covid changes to justice system
The vast majority of solicitors who took part in exclusive research commissioned by the Law Society of NSW hope that many of the changes to legal practice and the justice system, brought about by the COVID-19 pandemic, will remain a permanent part of their working lives.
When asked about their views on the impact of COVID-related changes on the integrity of the justice system, less than a quarter of respondents (22%), believed the changes have had a negative impact overall.
Almost 1500 NSW solicitors took part in the Law Society’s online survey from mid July 2021 through to early August 2021 when the state was experiencing its second major lockdown.
Questioning centred on experiences of COVID-19-related changes from four perspectives: litigation work, advisory/transactional work, legal workplaces, and the justice system overall.
The findings have been published in a report, “A fair post-COVID justice system: canvassing member’s views”.
The research does confirm that changes adopted in response to the COVID-19 pandemic, enabling justice to be administered remotely, have presented challenges to legal practitioners, as they manage their practice, interact with colleagues, manage client relationships, and complete their day-to-day work.
However, very few are calling for an urgent reinstatement of the pre-COVID status.
Both the quantitative data and in-depth insights from the research found that solicitors appreciate the benefits that remote delivery of legal processes have brought to their legal practice and, on balance, feel that these outweigh the drawbacks.
President of the Law Society of NSW, Joanne van der Plaat, said the Law Society commissioned the research in an effort to gain more insight into how COVID-related changes have impacted the NSW solicitors and the extent to which they supported these changes remaining a permanent part of their working lives.
“COVID-related changes have required legal practitioners to change the way they practise law while navigating new realities in their work situation,” Ms van der Plaat said.
“As the voice for NSW solicitors, we thought it was important to consider the extent to which the changes spurred by COVID-19 should be temporary or should be retained - even when it is possible to revert to pre- COVID practices.”
“The findings from this research will also shape our policy submissions and inform the conversations we will continue to have with the courts and government, on behalf of the profession, as we embark on a pathway out of the pandemic.”
Some of the key findings include:
- The processes changed because of the COVID-19 pandemic were generally easy for respondents to adapt to, and even more so in the area of advisory/transactional work. The vast majority of changes were considered to have a positive impact, with respondents welcoming the opportunity to retain them so they could choose to use them in some circumstances.
- Across processes, particular benefits of the changes have included indisputable time efficiencies (for solicitors, clients, and other parties), cost savings and benefits for accessibility/flexibility due to minimisation or elimination of travel requirements (which is particularly advantageous for those living in regional areas or with mobility issues who have traditionally found it hard to meet and attend court) and access to justice.
- In litigation, the notable exception was remote cross-examination of witnesses (with 55% of respondents reporting it was difficult or very difficult to adapt to this change) and remote court hearings with an unrepresented party (41%).
- In advisory & transactional work, the difficult change to adapt to was participating in mediation or other alternative dispute resolution via audio visual link or voice only – 27% of respondents indicated the change had been difficult.
- The majority of respondents would like to see a permanent shift towards being able to make applications or lodge documents on behalf of a client via an online platform. Viewing/downloading court files remotely were particularly valued changes to be retained but current challenges include lack of consistency across courts/tribunals, upload limits being too small, lack of familiari ty with the technology and some platforms having problems or bugs.
- Remote witnessing of documents and electronic signings/executing a contract were viewed as highly valuable for reasons of time efficiency and flexibility. A permanent move to this was seen as long overdue.
- While virtual courts have their strengths, the importance of allowing for some court processes to take place in-person is widely acknowledged. Views about in-person attendance are mixed, especially regarding who benefits from remote hearings and who does not. Remote court appearance appear to be best suited to appearances of a procedural nature, such as mentions, call- overs and directions hearings. Respondents appeared more concerned about hearings involving unrepresented parties, defended hearings, cross-examinations, witnesses, complex evidence and juries.
- Perceived negative impacts for virtual courts related most commonly to court etiquette or professional courtesy, client and lawyer communications, fairness to each party and the ability to settle a matter early. Connectivity/internet issues were the technology challenges most cited.
Less than a quarter of respondents (22%) believed there has been a negative impact overall on the integrity of the justice system. The strongest concern was about a negative impact on public access to viewing of court hearings, participation of clients or witnesses in courts, and litigant access to support services. On the other side of the equation, some saw the potential for remote processes to increase access to justice and protect vulnerable parties.
The potential for better work/life balance, created by better acceptance of flexible working conditions, was a perceived positive of the COVID-related changes.
- However, in relation to workplace changes, negative impacts were consistently perceived in the area of professional networking, ability to develop junior staff and staff mental health and wellbeing.
Ms van der Plaat said it was pleasing to see that the Law Society’s efforts to support members during the pandemic was noted and appreciated by many respondents.
“Advocacy efforts by the Law Society and support provided to members to date appear to have been well received and to have largely hit the mark,” she said.
“The research has also highlighted that all solicitors, particularly those most at risk of being left behind in these changes, could benefit by continuing to keep up to date with latest developments, directives and changes to processes – which is where our regular COVID-19 updates to the profession will continue to prove beneficial.
“And we can also look at whether this can be supplemented with specific training, guidance or advice.
“Additional issues that are worth further consideration include ensuring the general public has access to virtual court hearings, maintaining quality lawyer/client relationships during lockdowns and ensuring that clients involved in remote hearings feel part of (and subject to) the justice system, particularly in criminal litigation work” Ms van der Plaat said.
Heartward Strategic was commissioned to conduct the research for the Law Society. In total, 1,483 solicitor members took part in the study between13 July 2021 and 4 August 2021. 66% of respondents practise civil or criminal litigation. 50% engage in advisory or transactional work.
Access the report here.