Speaking to Lawyers Weekly, senior partner of Kalus Kenny Intelex Lawyers and winner of the Litigation Partner of the Year award at last year’s Lawyers Weekly Partner of the Year Awards Sven Burchartz said that in terms of trends to look out for in the litigation space, alternative dispute resolution is something courts will be increasingly pushing for.

“Because the courts are also increasingly requiring parties and practitioners to be far more circumspect about how they actually approach these litigation disputes, getting rid of the multiplicity of documents, which are entirely meaningless to the core issues in the dispute and the management of litigation and the active judicial management, but also the responsibility of practitioners to embrace a rational, reasonable approach to a dispute that, notwithstanding the courts, still needs to be sorted out,” he said.  

“And in any event, most disputes, irrespective of magnitude, will come down to anywhere between 10 and 50 core documents of an evidentiary nature.”

In addition, Mr Burchartz said that particularly post-pandemic, there will be a rise in efficiency and technology within the profession.

“I think there’s going to be an increased or continuing use of Zoom or Microsoft Teams or video platforms to interact with the court, from directions hearings to contested hearings. Because particularly when you’ve got separate parties, various locations, it can be more convenient and cheaper. And, oddly enough, online hearings tend to be a little bit more orderly because the technology only allows one person to speak at one time,” he explained.

“And because of what’s happened in the last two years, the way in which the courts have approached how they require parties and practitioners to actually manage their cases, even when you go back to largely in-person hearings, I think that some of the efficiencies and some of the steps that were taken to make online work efficient will be translated into in-person hearings.”

COVID-19 has caused an uptake in technology in many different sectors, particularly in the legal industry.

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“It depends on the nature of dispute and the scale of the dispute, and also the resources of the lawyers that have been running disputes. But because it was forced upon the profession, it had no choice but to adapt. And therefore, even those lawyers who perhaps weren’t able to access or didn’t feel confident enough to access or use or explore technology solutions within their practices have now seen how easy it is,” Mr Burchartz added.

“I think the cost and complexity has also been eliminated. If you look at Microsoft standards, [Teams] is very much a proprietary Microsoft product. But the use of Zoom, for instance, some of the courts are quite comfortable using Zoom. You can use documents, you can share documents, you can screen share and talk quite easily. So, the pandemic has absolutely opened up more practitioner’s access – and their eyes – to technology and the benefits of it.”

Similarly, Mr Burchartz said that hybrid working was also thrust upon the profession as a result of the pandemic – but didn’t hugely impact the litigation space.

“There’s no doubt that remote working, again, was forced upon us. But in terms of litigation, there were still matters with which I was involved where the other party wanted everything printed out. And they had multiple photos, folders and documents in their home office and down the corridor in their house, so some practitioners jumped on it.

“But I don’t think it impacted [litigation] terribly in the sense that you still litigate it the same way. Remote working generated so much efficiency and so much awareness of a better way to work,” he said.

“The concept of file sharing, the concept of signing documents, the active working on documents between parties to collaborate when you’re creating court books and using things like Google Docs and other platforms, which allow live editing by multiple parties. I don’t think the location was actually an impact. I think it has basically opened people’s eyes and made litigators, at least at some level, collaborate more, because they had to. And I hope that sort of collaboration by technology continues, and I fully expect it to.”

Whilst these have been positive changes to the litigation space, Mr Burchartz said that the profession is likely to “level off” and find a balance before continuing to evolve.

“When change is forced upon us, we deal with it. As we adapt to it, we enjoy it. And then you want a period of some sort of stability. I think there’ll be a reflection on what works best and what can be kept. And what the benefits of in-person hearings are, particularly in court, should be kept, because it is preferable in my view that the court hearings are conducted face to face, to allow the court to assess the demeanour of the parties and representatives for witnesses,” he said.

“As practitioners, we’re inherently conservative. And, therefore, we’ll probably level out for a while. Work out what’s good, what we like, what worked, what didn’t, and then, again, land in a better place.”