Better safe than sorry – risk for litigators during coronavirus

The legal profession as a whole is not known for enthusiastically embracing change. Typically there is slow uptake on new initiatives – witness, for example, the introduction of incorporated practices in 1985 or alternative business structures in 2012. So it would have been little surprise when the Civil Procedure Rules (CPR) Committee announced in February 2020 that, due to low uptake, the initial pilot of full video hearings in selected civil trials would be extended and converted to an opt-out initiative. Fast forward just three weeks and the civil courts were scrambling to roll out video and/or telephone hearings wherever feasible due to the COVID-19 crisis.

The world has changed significantly for litigators in a very short period of time. In addition to adjusting to homeworking wherever possible, the need to avoid in-person interactions and the swift transition towards online hearings should lead solicitors and their firms to revisit their risk management strategies. Already, very specific areas of risk are emerging which need to be addressed and managed.

Cybersecurity

The most obvious emerging risk is the rise of cybercrime linked specifically to the COVID-19 crisis. The ruse of sending phishing emails referencing COVID-19 issues and/or taking advantage of perceived shortages of supplies has been notable. Such scams seek to take advantage of the natural fear associated with COVID-19 and may be exacerbated by fee-earners being obliged to work in an unfamiliar online environment.

Not only are scammers tapping into COVID-19, they are taking advantage of untested system weaknesses caused by, or increased through, the sudden rise of remote working. Thus the rise in use of the Zoom platform, for example, has led to it being targeted by online trolls and created a phenomenon called “zoom bombing” where Zoom meetings are ‘bombed’ by pornographic, racist, or other explicit or profane material. Globally, law enforcement agencies have issued warnings about the risks associated with zoom bombing.

All indications are that the rise in cybercrime remains focussed on variations on themes with which we are all familiar. The risk can be best managed through maintaining vigilance and being aware of known ‘red flags’. As remote systems are tested and put under strain by individual firms, system weaknesses specific to individual firms and/or clients will become known. Solicitors should be encouraged to report anomalies and difficulties so that system weaknesses can be identified and addressed.

E-signing

Litigation has been a stubbornly paper-based activity in its need for documents to be signed with due regard for the serious consequences of signature. Recent changes to statements of truth only emphasise the need for solicitors to ensure that proper advice is given on signature. Arranging signatures by remote means may create logistical problems as to return of scanned or photographed documents where clients may not have access to printers and scanners. Perhaps more importantly, solicitors need to be extremely alive to the risks associated with poor-quality scans, version control and incorrectly assembled documents.

Working from home may create a need for workarounds due to a lack of processing resources, or inability to:

• meet clients face to face
• ensure clients understand the document they are signing, and
• check exhibits while signing.

Supervising teams

Checking in with staff and ensuring effective supervision can be difficult when working from home. It is essential to communicate effectively with staff, and making use of video calls as well as regular email and phone communication should be part of a supervision strategy where possible.

Part of ensuring effective supervision will be to maintain necessary training which may also be affected by the mass cancellation of in-person seminars. Ensuring that fee-earners are familiar with new legislation and emergency powers introduced in response to COVID-19 is an important part of supervising effectively, particularly where longstanding processes have been temporarily suspended and replaced with interim measures.

It has already become clear that there will be cases challenging or affected by the COVID-19 legislation. Solicitors should be aware of the need to ensure that applications based on COVID-19 legislation are properly arguable and are not wasting the court’s time. It is likely that courts will have little tolerance for overly speculative cases, given the prevailing public mood and the strain that the pandemic places on limited resources. In circumstances where there remains no additional guidance on the requirement not to waste the court’s time (expressly introduced on 25 November 2019), solicitors should consider how to demonstrate compliance where such applications are arguable but merits are ambiguous.

Deadlines

Working from home without support found in the office can lead to delays in complying with deadlines. This risk is particularly acute where staff are absent through illness. Care should be taken to ensure that deadlines are properly diarised and warned – and applications to extend made if necessary.

Wellbeing and HR management

Many firms have had to furlough staff and many fee-earners are having to deal with cases without the usual support available in the office. Added to limited social contact, this can have a serious and significant impact on wellbeing. Firms have a duty of care to their employees and should take available steps to help with wellbeing. Regular check-ins and ensuring that fee-earners know of sources of support – such as HR resources and helplines such as LawCare – should be routine.

Office security and financial management

Whilst not an issue specific to litigators, empty offices may be a tempting target for criminals and care should be taken to ensure that physical premises remain secure. Arrangements should be put in place to ensure that hardcopy documents and post are both dealt with and secure.

Firms also need to be aware of cashflow pressures which may limit the firm’s ability to meet critical expenditure – and aware of pressure on clients regarding their own cashflow. Clients’ financial positions may be dramatically affected by the current crisis and litigation strategies may need to be adapted to take account of that. Fee arrangements as well as costs / benefit assessments may need to be revisited.

Risk management

Effective risk management strategies are important at all times, but it is in times of crisis that our policies are truly stress tested. Important lessons will be learned from COVID-19 and the speed at which the profession has had to adapt to change. Staying aware of emerging risks, and maintaining vigilance, is more essential than ever.