Court of Appeal advocacy, in the era of Covid-19
Appearing before the Court of Appeal, especially as lead counsel, is always a challenge. Doing so via video-conference, more so. On Monday, I had the privilege of being one of the first few advocates to venture into this new arena [link]. I thought it would be useful to share some practical tips. Fewer jokes this time because this is no laughing matter!
1. Preparation.
This is a cliché, but it continues to hold true. Set up and test your video-conferencing equipment (a laptop or desktop with a webcam, or a tablet) well in advance. Is the camera too far away? Does the camera need to be angled higher or lower (to avoid showing off your double chin)? Is your potato filter on? Don’t leave these things to the morning of the hearing itself.
If you have a choice, I recommend a laptop with an integrated webcam, purely because it offers more flexibility. You can shift it around easier than a desktop, and you have more options as to how to angle the camera (as opposed to a tablet, which may require a stand). For the rest of this note, I will assume that you are using a laptop with an integrated webcam and microphone.
Your bundles and papers will have to be well-organised, just as is the case for physical hearings. If you have to flip your papers frantically, the microphone may pick up and amplify the shuffling sounds. That will only amplify the awkwardness of any pregnant pauses.
2. Dry runs.
Don’t test solo. Once you’ve set everything up, do a dry run and get a friend or colleague to observe the dry run by video-conferencing in from another location or outside the room. Remember, the test is not how you look to your colleague sitting next to you. The test is how you look and sound on someone else’s screen. Can they hear you loud and clear? Is your voice muffled? Is there anything distracting in the background?
The dry run should be done at the same location that you plan to attend the hearing from, for obvious reasons. Even better if it can be done at approximately the same time — you want to know if, for example, birdsong is audible through your microphone.
If you have a colleague or assistant who will be by your side during the hearing, test to see if the microphones can pick up the sound of their typing.
3. Virtual backgrounds.
I am personally not keen on virtual backgrounds because the white shirts we wear for Court attendances can mess around with the virtual imaging — the actual background (that is meant to be covered up by the virtual background) may end up being projected onto the white shirt. I have no idea how or why it happens, but I have seen it happen.
It also goes without saying that your background should be neutral and non-distracting.
4. Using the laptop.
The laptop you are using for the video-conference should have only the video-conferencing software running, and nothing else. You don’t want to interrupt your oral submissions (or worse still, the Court!) with an email notification.
I don’t suggest using the same laptop (from which you are video-conferencing) to access documents. First, you may end up messing with your camera angle if you have to lean forward to type or peer at documents. Second, it may be awkward to type on a laptop that has been elevated and positioned away from you (for the best webcam angle). Third, every time you poke at your laptop, you run the risk of accidentally exiting the video-conference, messing up the settings, muting your microphone, etc.
5. Before the hearing.
You may be given directions for a test run before the actual hearing. If so, make the most of it. In my case, we were directed to connect 45 minutes before the hearing to test the video and audio feed. During the test run, some further directions were also given as to the conduct of the hearing.
Before the hearing, you will be asked to wait in a virtual meeting room. Once you are in the virtual meeting room, behave as though you are sitting in Court, waiting for the Judges of Appeal to come in — the video-conference can start at any time without warning. Don’t use the camera as a mirror to pick spinach out of your teeth!
For my hearing, the Court of Appeal directed all parties to have their webcams turned on at the beginning of the hearing, for them to be introduced. Thereafter, lead counsel and the Judges of Appeal kept their webcams on, and all other parties (co-counsel, litigants) turned off their webcams. If your client intends to attend via video-conference, he or she will need to dress as though physically present in Court.
I suggest having your co-counsel / client turn off their microphones as well, to avoid accidental interruptions.
6. The hearing.
For my hearing, I had 2 Judges of Appeal physically present in the Court of Appeal, and 1 Judge connecting from another location. I had no difficulty at all seeing or hearing the Judges of Appeal.
While the Supreme Court’s guide [link] provides that “ it will not be necessary to stand and/or bow to the Court at the start or end of the hearing or to stand when addressing the Court, when otherwise required to do so for physical attendance”, old habits die hard. When the Judges of Appeal physically entered the Court of Appeal and bowed, counsel naturally followed suit. For those of us who are shy about showing a close-up of a bald spot, you may want to cover this in your dry run! And please, please, please, no FBT shorts.
When addressing the Court, the instinct is to look at the on-screen image of the Judges you are addressing. But for more effective oral advocacy, look into the webcam instead. Use a couple of post-it arrows to remind yourself if necessary.
You will not be able to see the stopwatch in the Court of Appeal that marks your remaining time. Make a note of the time at which you commence your oral submissions, and pay attention to your remaining time!
7. Concluding remarks.
While video-conferencing technology has been in place for years now, many advocates are (understandably) resistant to change. I personally hate the thought of attending a hearing via video-conferencing, for which opposing counsel is attending in person before the Judge(s), for fear of undermining the effectiveness of my oral submissions.
But what if the Covid-19 crisis is, instead, an opportunity to change the way we conduct hearings? What if all non-trial hearings continue to be conducted via video-conferencing, by default, and even after the Covid-19 crisis is over? Unusual times call for unusual solutions. And these unusual solutions may well continue to be of value far into the future.
Finally, many thanks to the client for entrusting us with the matter, and to Lim Yuan Jing and Andrew Tan for the diligent and able assistance.
As always, I welcome all comments and feedback.
P.S. this is not legal advice, for general information only, views here are my own and not those of Rajah & Tann Singapore LLP, etc etc, you know the drill.
