“The platforms used were new to many practitioners and there has been a steep learning curve as we all adapted. Many of the issues that arose – the poor sound quality or Wi-Fi connections – have been or are in the process of being managed. I would say that the biggest challenge and the most debate has been around witness evidence. There are two schools of thought on this, and there has been some judicial commentary on the topic,” she outlined.

“On one hand, some feel that appearing virtually throws up challenges around assessing credibility of a witness and does not convey the same sense of occasion or formality. There is something powerful about sitting in the courtroom, in view of the judge and others which can influence the approach and attitude of a witness. Conversely, others see the virtual platform as more effective. It allows those assessing credibility to see the [witness’] face [close-up] in a way that isn’t possible in a physical courtroom, and assess facial expressions during testimony. Debate around this is likely to continue.

“Another layer of complexity connected to witness evidence in the virtual court is access to documents. In my experience, many practitioners have struggled with electronic briefs, [court books] and the like however in my view, these challenges are not insurmountable and we will all get better at relying on electronic documents.”

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This said, there are inherent opportunities for litigators emerging from the shift towards a more tech-driven legal world, she posited.

“In preparation, for example, lawyers often have to meet with multiple witnesses which can be a time-consuming task for all involved. By using virtual technology this has become more efficient, taking away the need to travel to meet and making witnesses who live in regional areas and interstate more accessible,” she explained.

“The virtual courtroom also has benefits for the client. Whereas previously if attending court, they would be seated behind their advocates and away from most of the action, they can now attend court and have a ‘[front-row] seat’ in the proceeding, watch witness testimony, assess the effectiveness of the advocate and their argument and observe the judge. It can help inform their decisions and input into strategy and approach to matters and feel more empowered.”

Partners and litigation leaders will be integral, Ms Fenton argued, in ensuring that their teams are prepared for the “new normal” in litigious matters, adding that the education process is “unlikely to be a traditional top-down approach”.

“Rather, I see that it will be more focussed on practical sharing of experience at all levels. Those joining the legal professional come with a significantly higher level of competency and comfort around virtual communication which we can all learn from, and I would envisage that the virtual courtroom will become a standard part of legal training moving forward. The 2021 graduate intake and beyond will likely have a different experience than those who have come before them,” she mused.

“I see the learning focus to be on how to present arguments best suited for virtual proceedings. The experience has been that the virtual court can be [slower-moving] so presenting a concise case with clarity is key to making the right impact – it is my role, and that of other senior lawyers – to ensure that our teams are well placed to do this.”

Ms Fenton predicted that a “hybrid model” will be adopted for litigious matters moving forward: “In some circumstances, this might mean that some participants in a matter will be in the physical courtroom, while others will attend using a virtual platform.”

“There will also be some instances where a choice between [in-person] or virtual court for a trial will be made depending on the circumstances of the case. For example, where credibility is an issue, parties may prefer a [face-to-face] hearing. Whereas in other circumstances, choosing a virtual setting can drive efficiency and control the cost of a matter without impacting [the] outcome,” she submitted.

However, the court must remain a respected and revered element of the justice system, she opined. It is critical that all parties involved in litigation remember this, Ms Fenton stressed.

“The same etiquette, formality and reverence [apply] and it will be imperative for practitioners to ensure that those appearing understand this, whether it be how to address the court or standing when the judge enters or leaves. Recognising this formality will be important in the ongoing success of virtual proceedings,” she said.