What’s changed and what’s working? An analysis of the post-COVID justice system

Criminal solicitor Andrew Tiedt articulates the feelings of many NSW solicitors when reflecting on the changes to his practice caused by the COVID-19 pandemic.

“The changes have been very good,” he tells LSJ – before qualifying his comment – “when used appropriately.”

It’s a typical “yes – but” lawyer’s response, however, it emphasises the mixed feelings many solicitors across the state harbour toward online and remote court hearings. Tiedt is an Accredited Specialist in Criminal Law and a Director at J Sutton Associates in Sydney. He voices the vacillating opinions being reported by solicitors working in both civil and criminal courts.

“For example,” he continues, “the Downing Centre Arraignment List on a Friday used to be incredibly busy to attend in person. There were 50-100 matters listed every Friday and you would have to go to the Downing Centre in Sydney and wait two to three hours to be called. The court now publishes an online list and it runs like a well-oiled machine – everyone has an individual video hearing, two minutes each, and it’s done. It’s a huge time saver, and rather than waiting in a tiny courtroom you can attend to other work in your office or at home.

“Where [the online court system] is not so good, is where you’re trying to run complex matters over video, which is always super hard … It becomes impractical when you either need to be handing up documents or you need to be looking at documents that are handed up, or you’re trying to cross-examine people. When you want to show a witness a document it needs to be emailed and then brought up on screen, which becomes clunky and very difficult.”

The impacts of COVID-19 on defended proceedings

Tiedt’s reflections are indicative of the sentiment shared by solicitors throughout the profession, evidenced in an exclusive new report published by the Law Society of NSW this month.

The report, “A fair post-COVID justice system: canvassing member views”, released to the public in February, publishes the results of a research survey conducted by Heartward Strategic on behalf of the Law Society of NSW, and sent to solicitors who were members of the Law Society in July and August 2021. Almost 1500 solicitors across NSW responded to the survey, with many reporting positive changes to workplace life, advisory work, and efficiency. However, litigators and criminal lawyers were sceptical of some changes to in-person court hearings – in particular, the technical difficulties that come with cross-examining witnesses remotely.

“Defended proceedings, especially criminal matters, should be face to face to enable proper evaluation by the court of witness testimony among other reasons,” one anonymous respondent commented. Other responses centred on similar concerns: “I consider that the pressure / gravity of the witness box is lessened remotely”, “the witness doesn’t get the same scrutiny on video and it is less formal and therefore less awe-generating in the witness”.

Across the board, 69 per cent of respondents involved in litigation said there should always be an opportunity for court processes to take place in person. Tiedt agrees: “In general, I prefer in-person hearings for complex matters, but like everything, it depends. We’ve been cross-examining sexual assault complainants via audio-visual link for years. It’s not always easy, but it is there for good reason.”

The impact on advisory and transactional work

The research questions distributed in the Law Society survey were designed to better understand how COVID-related changes to the justice system and legal work have impacted practitioners in NSW. Law Society President Joanne van der Plaat says the results will help shape policy submissions and inform conversations with courts and government about operating through and beyond the pandemic.

“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,” she tells LSJ.

“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 … 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 regular COVID-19 updates to the profession will continue to prove beneficial.”

In the context of advisory and transactional legal work, the survey showed positive sentiment outstripped negative sentiment for all processes impacted by COVID-19. The shift to using an online platform to lodge documents on behalf of a client was lauded as most valuable, with members welcoming the opportunity to retain this and other changed processes for their time and cost efficiencies.

Erin Kerr, an Albury-based property lawyer and conveyancer with more than 12 years’ experience, says the digitisation of conveyancing processes such as electronic signing and online verification of identity have made property exchanges faster and more efficient. Kerr is the Principal of Pogson Cronin Kerr Solicitors & Notary and the current President of the Albury District Law Society. Amid the property boom hitting regional centres like Albury-Wodonga, being able to complete legal processes remotely enabled her work to continue – even while clients were locked down in other areas of NSW.

“We were able to do transactions in the middle of lockdown with clients sitting at home in Sydney,” she tells LSJ. “We can email a contract to a client, they can electronically sign it and it comes back to us straight away. There’s certainly been added advantage about that – the conveyancing process I think has been sped up … There’s more access to legal services for people in remote and regional areas.”

However, Kerr says other processes – such as will-signing and will retrieval for elderly clients who may not have access to technology – still need to be completed in person. She also reflects that adapting to teleconferencing technology such as Microsoft Teams was difficult for some older lawyers in her team.

Kerr adds keeping up staff morale was challenging when team members could not go on holiday elsewhere in NSW without self-isolating on their return, as Albury was part of the NSW-Victoria “border bubble”. The survey results correspondingly flag mental health impacts – with many respondents reporting a decline in their workplace mental health and wellbeing during the pandemic.

“We are going to implement some [of the changes imposed by the pandemic] but not all,” Kerr says. “At the end of the day, in our sort of work, you still need to be able meet people face to face, and there are things I would prefer to do in person.”

Read A Fair Post-COVID Justice System: Canvassing Member Views in full here.