In June and July 2020, Appleyard Lees litigated an unprecedented number of trials in the Intellectual Property Enterprise Court (IPEC) – which were held in an equally unprecedented, virtual format. The following outlines our experience and our learnings. We hope this will be helpful for other attorneys, solicitors and litigants with upcoming trials at the IPEC which, since March 2020 and for the foreseeable future, will be held virtually.
The virtual trial experience, these topics and others, are discussed in more detail by IP litigation specialists Robert Cumming, Chris Hoole and Bill Lister, in ‘The Greenshoots Podcast’ by Appleyard Lees, Episode 8: virtual trials at the IPEC.
Pre-trial preparation (bundles)
In a virtual trial, the bundles are more important than ever. Bundles were electronic, comprising documents in .pdf format. Whilst there is no official court/tribunal rules for electronic bundles, Mann J has issued some (albeit lengthy) guidance. Additionally, from our experience, there does not seem to be a hard and fast rule as to whether hard copy bundles are exchanged. However, if the parties agree that they will do so, it is important to think ahead about how these are to be prepared and sent, especially when office access is still complicated for many.
Mann J’s guidance lists items that must be checked before sending e-bundles. In our view, some of these items deserve special attention:
Page numbering: this proved to be slightly more complex than expected. As the judge will likely open documents on his/her computer and search for particular pages in bundles that contain multiple documents, each page number should be preceded with the letter of the corresponding bundle. For example, pages in Bundle A should be numbered A1, A2 etc. Thus, the judge, or any party, can search easily for a page number within a bundle.
Pdfs must be searchable: this can be done by simply using a .pdf conversion/analysis tool on the document.
Pages should be orientated properly: to help with the efficiency of the trial (and the patience of the judge), it is important to ensure that all pages are the correct way round.
Use a bookmarking tool for large .pdfs: this ensures that if page numbering fails, everyone
can still locate important sections of documents easily.
Virtual ‘courtroom’ etiquette
Whilst this may differ from judge to judge, from our experience, barristers were not required to be in full dress. In fact, HJJ Hacon went so far as to say that ‘it would look strange for you to be sitting in your living room in your robes’ which sums up the virtual experience as a whole. Those who were simply spectating did not have their cameras on and the grandeur of a trial was seemingly taken away when the judge was simply ‘placed’ into the virtual room by the clerk.
Given our experience, it is important you enter the ‘room’ at least 15 minutes before the trial start time, via the link sent by the clerk. Make sure your microphone is muted, and if you’re a legal professional, even if your camera is off for the whole trial, dress as if you are in the court room, just in case!
It is important that witnesses are in a quiet room, free from distractions. They should not have notes or what could be perceived as notes with them. During witness examination and cross-examination, all cameras should be turned off except for the barrister, the judge and the witness. From our experience, we’ve found it distracting, for the witness in particular, if other parties are present and can be seen during cross-examination.
Finally, be prepared for cross-examination to take longer – technology is very rarely perfect.
Final practice notes
Virtual trials are more tiring than you think. The process can take longer than in-person trials for many reasons, whether its technical issues, witnesses finding documents or the extra time it takes to search pages of a .pdf. We would suggest considering whether what would normally be a two-day (in-person) trial, should be extended to a two-and-a-half or three-day (virtual) trial.