ARTICLE
Virtual reality in a new era I
recently settled, in mediation, proceedings with a stake of several tens of millions of pounds, with a full contingent on each side. Whilst we would have preferred a meeting, that was clearly not going to be possible with pandemicrelated restrictions, and so the mediation proceeded remotely. There were twelve attendees, in 11 different locations, each at their screen. The exercise was a wonderful extension of a normal mediation. At the click of a key, the mediator could place us all in a single virtual room, for introductions and opening statements, and then, at another click, take the parties into their own virtual rooms, where the claimants and their advisers and the defendants and theirs could be blocked off from each other, but in which members of the team could communicate with each other perfectly well. The mediator could of course enter either room. Nobody from either group could enter the other’s virtual room. Further break-out rooms were available for the mediator to speak to only certain members of either team, or for those specified members to speak to each other. The mediation lasted 17 hours, by the end of which a resolution had been reached, drafted, amended, recorded and signed up. It is very easy to imagine that almost all client meetings, discussions between opposite solicitors, and with counsel and experts and witnesses, could be held remotely. In noncontentious work templates of entire documents – contracts, leases, partnership agreements, manufacturing or distribution agreements – could be amended in virtual meetings, with every participant typing into the same document so that all others could see the contribution on their own screen as they were being typed. In contentious work, entire bundles could be created in a single meeting with counsel and the clients, electronically paginated and then labelled and tabbed, for interlocutory hearings and indeed trials. Internal discussions, team meetings, the formulation of strategy – practically everything could be done virtually. So, has the pandemic taught us a different way of working? We have certainly begun to use video conferencing far more often, and it is likely to replace telephone conferencing. With video conferencing and with real time document creation in the course of a conference, we now able to work on documents collaboratively and more efficiently than we have ever been able to do in the past – and, indeed, far more speedily. Even lengthy trials are now being conducted remotely, and the concern that witnesses may receive prompts on their screens during examination is addressed by ensuring that associates – safely distanced – are in attendance without a whole courtroom of people being in the same real room. Associates have, after all, long been used to assist a witness to locate documents in a voluminous bundle. Within 40 years, we have gone from taking manuscript notes of instructions and typing documents several times over to being able to deliver them in a split second and read and explain them 20 | The Bill of Middlesex
Rohit Sanghvi
to larger groups of stakeholders in a case, to break out and discuss them in privileged meetings, and to produce a final, agreed, document at the end of a virtual meeting. With these developments, where are we headed in legal practice? Decades ago when I was training, my principal told me not to become a slave to the document, and instead to ensure that the document was my slave. I needed to reflect the client’s instructions, not to assume, by reference to a template, what they might be. But increasingly, today, in non-contentious work, we hear clients ask not whether a particular provision is in their interests, but rather whether it is “standard”. If so, the client is far more willing to accept it. Combine, then, the ability to work remotely, to work on documents in real time, to draft them and amend them and discuss them and agree them in a single, often swift, meeting, with a restricted opportunity to consider a variety of permutations, and one wonders whether the whole of society is heading towards accepting what is “standard”. If so, there is a legal services revolution round the corner in the provision of many types of legal services. In non-contentious work, more and more will practitioners work with templates, and more and more will clients discover how the document really affects them only if a dispute arises, and less and less will they tolerate delay, lengthy explanations of rights and obligations, or high cost. In contentious work, too, there are significant changes already in train – issue-based disclosure, for example. The immediate concern for law firms will then be to ensure that they are not exposed to liability where the client requires speed in an environment which lends itself to speed. Almost all firms now set out at the outset in their terms of engagement the content of the service they will provide, but many firms fail to exclude services from their offering to the client. Firms will need to front-load in their terms of engagement not only what they will do for a client, but also what they will not do. If a client agrees, expressly, that a service will not be provided, and if the service is in fact not provided, they can hardly complain that it was provided in breach of contract or that it was provided negligently, or indeed that there was a negligent omission to provide it. There is an intriguing possibility that within a decade, clients will demand legal services which are tailored to their own assessment of the rights they want, the obligations they are willing to accept, and the risks they are willing to run. If that happens, the bespoke legal service will become a relic of the past. ■ Rohit R Sanghvi, Partner and founding member of R R Sanghvi & Co, Solicitors. He specialises in cases which throw up exceptional legal challenges at the frontiers of the law, developing persuasive arguments for the benefit of his clients.
