The Rising Use Of Technology In The Legal Profession
March 30, 2022
By: Michael Earley, Legal Manager.
When thinking of technology driven professions, it’s unlikely that law springs to mind. And yet over the course of the last few decades legal technology has become increasingly sophisticated, developing from simple dictation and fax machines into cutting-edge case management, e-discovery, and e-filing software. Software exists that not only tracks and files emails based on cases, but also extracts and categorises the related documentary attachments. Many countries have also introduced electronic case management and filing in their court systems. However, historically the use of such technology was largely limited to larger international firms and technologically advanced countries.
Living and working in the COVID-19 era, the drive to improve legal technology, particularly in respect of client communication and dispute submissions, has gone into overdrive. While technology has been a fixture of the legal profession for some firms and countries, there are many more for whom the reliance on new software and systems is largely alien
Prior to the COVID-19 outbreak, most initial pleadings in Qatar were lodged physically, and case management was handled by a clerk of the relevant circuit court. This process applied to both civil litigation and arbitration.
However, as part of its efforts to contain the spread of the virus, Qatar quickly adopted new technologies and remote procedures. The Supreme Judiciary Council introduced a dedicated platform (not just a website) to handle case filings and management in the State courts. While the civil courts do not yet permit remote hearings, the local criminal courts have embraced technology by instituting remote initial hearings of criminal complaints.
The Qatar International Centre for Conciliation and Arbitration (“QICCA”) and the Qatar International Court and Dispute Resolution Centre (“QICDRC”), part of the Qatar Financial Centre and modelled after Common Law jurisdictions, quickly introduced e-filing and electronic case management solutions for parties seeking to resolve disputes under their respective auspices. Indeed, the QICDRC has a dedicated eCourt platform for its cases, whether the claims relate to regulation, arbitration, or litigation.
Although the introduction of such remote technology is progressive (and arguably necessary given current circumstances), it is not without its disadvantages, particularly in the context of dispute resolution. Holding remote hearings assumes that the necessary technology and infrastructure are readily available to the disputing parties in their respective jurisdictions. However, even if a party has access to a computer it does not necessarily follow that they have access to the necessary internet bandwidth required to participate in real-time hearings.
The evaluation of witness credibility is difficult when the witness is providing testimony remotely, and most people would agree that there is a marked difference between testifying remotely from an enclosed business centre meeting room and testifying in person in open court or before a tribunal. The flow of cross-examination could also be disrupted due to technical issues (and even then it would be difficult to know whether such disruptions were deliberate).
Given the prevalence of hackers there is also a privacy/confidentially concern with respect to remote hearings. Some countries do not permit the use of virtual private networks (VPNs), and accordingly internet service providers (and governments) could potentially monitor the proceedings of a dispute. Depending on the nature of the testimony, in certain countries witnesses (and even advocates) could potentially be exposed to political persecution, arrest, or worse. Further, there are various free and paid screen recording programmes that an unscrupulous participant could use to remotely record the hearings without the knowledge of any of the other participants.
There is also the issue of a party’s right to counsel. It is likely that there are circumstances in which a party and its counsel are participating remotely from different jurisdictions. This makes attorney/client discussions in real-time difficult. While it may be possible to maintain a separate connection via phone, there is always the risk that information will be leaked due to human error (e.g. failing to press the mute button on the hearing speaker).
Another question relates to whether remote hearings are the proper venue for complex disputes involving multiple witnesses, experts, documents, exhibits, and photographs.
Regardless of the potential disadvantages, recently introduced legal technology, particularly in respect of practicing remotely, has accelerated the development of the legal profession and likely will become the new norm as it continues to develop.