The 21st century barrister

On a street thronged with tourists using selfie sticks and office workers glued to their smart phones, a barrister can stand out like a time-traveller from the distant past.

An unmissable figure in a powered wig, the barrister looks more at home in the world of drawing rooms and horse-drawn carriages than that of Facebook and Uber.

Yet an old-fashioned exterior can belie a cutting-edge mindset. Look carefully and the same barrister in her robes and jabot may well have a tablet device tucked under her arm.

The bar in 2016 is facing the same competitive pressures as any other legal business – and in many cases, barristers have recognised that adapting to modern technology is not a question of progress, but survival.

“Some people might think, because the bar is steeped in tradition, that we don’t evolve,” says Australian Bar Association president Patrick O’Sullivan QC.

“In fact, we’ve had to evolve for a number of reasons and continue to do so.”

Nonetheless, as the pace of technological change picks up, barristers must grapple with the ways in which digitisation shapes their practice – and the ways it may impact upon the traditions they wish to protect.

State of play

Barristers have a reputation as being resistant to change, but Mr O’Sullivan believes this is unfairly earned.

“The perception of barristers as a staid profession that is not prepared to consider change is completely wrong,” he says.

“The bar is an adaptive animal – despite the fact that we might have historical trappings, don’t be deceived by appearances.”

In his view, barristers have been pushed to keep up with the innovations employed by their instructing solicitors, many of whom come from firms where investment in technology is a high priority. When barristers receive briefs in electronic form, there is an expectation that they will respond in kind.

“We’ve evolved through an incremental approach, which reflects that which comes to us,” Mr O’Sullivan says.

While barristers who have grown up with digital technology may find the process easier, all are looking at their options for adapting to modern times, he believes.

Yet some barristers are not as confident in the bar’s openness to innovation. Pouyan Afshar – a barrister at Sixth Floor Selborne Wentworth Chambers, who co-founded practice management platform BarBooks – believes tech is being “underutilised” at the bar.

“I think in due course, people will move to that basic level [of technology adoption],” he says.

“But there is this very conservative tendency within the legal profession that doesn’t allow the uptake of technology, to the point where we would be able to use things effectively and make it easier both for ourselves and the client.”

In his view, different people within the legal profession – both barristers and solicitors – are adopting technology at different rates.

“It is definitely a multi-speed adoption of technology. It splits the profession in various ways, but mostly across the age spectrum,” he says.

Barrister David Sanders, who was admitted six years ago after a career in technology corporates, warns against seeing barristers as an exception to business trends. He believes the bar is adopting innovations at the same rate as any other small-to-medium business.

“We take advantage of whatever technology will help us do a task that needs to be done. In general, what is viewed as innovation is just natural progression of small business in the 21st-century world,” he says.

Practice makes perfect

For the tech-savvy barrister, the options for innovation start at home, or at least, in their second home – their chambers. While many chambers have retained the wood panelling and leather-bound books of old, technology has crept into many corners of practice.

Mr Afshar says iPads are commonplace among barristers, pointing to the bar as an early adapter to these devices.

Practice management software allows barristers to track their file progress electronically, while billing platforms record every minute allocated to each client.

Programs like Dragon allow transcripts to be produced simultaneously as dictation is made. CPD units can be completed online from the comfort of the office.

Online research has also transformed the approach to putting together advices, believes Mr O’Sullivan. Research that once took two hours may now take 15 minutes, an efficient outcome for both the client’s budget and the barrister’s workload.

“It does mean you have a greater pool of reference material with which to assist the court,” he says.

“You can get material and documentation out quickly because of electronic means.”

Yet the advent of online files may be the greatest change to a barrister’s practice. A typical case can easily run to 25 volumes, Mr O’Sullivan says – but today, these reams of paper can be replaced by a single electronic court book.

These case management innovations may allow barristers to provide more efficient service to clients, making it “easier to perform our core values”, according to Mr O’Sullivan.

Mr Afshar believes technology is lowering the costs of litigation, a major component of which is the management of multi- volume files.

“The costs of litigation will go down overall, which means people are not deterred from commencing litigation where they have proper rights to be adjudicated on,” he says.

“A lot of the blowing out of costs is about creating pieces of paper.”

Billing software, by contrast, may help barristers ensure they are can keep track of owed fees.

“People miss out on earning money. I know people – solicitors and barristers – who don’t record what they do on an ongoing basis,” Mr Afshar says.

“If you don’t record it, you’re missing out on that billing. You’re doing yourself a disservice and you’re doing the client a disservice, because they don’t know how much work you’ve actually done.”

Technology has also made barristers’ practices mobile. Mr Afshar says he regularly works from airports or locations outside of Australia – only court appearances actually require his presence in Sydney.

However, he warns that many barristers may not be realising the full potential of the technology at their fingertips, such as the dictation service offered by Apple through iPads and iPhones.

For barristers who work in mediation, technology may already have found a replacement for all but the most complex cases.

National Legal Aid is investigating a technology known as Rechtwijzer, which has the capacity to mediate family law disputes between parties and formulate agreements. The technology cuts out the need for lawyers or mediators in simple disputes, though parties are referred to legal advisers if the problems prove impossible to solve online.

Making connections

While practice management is becoming increasingly streamlined by technology, another shift is occurring in the modes of communication between barristers, solicitors and clients.

“Undoubtedly, communications is one of the core areas that technology has impacted more than anything else,” Mr Sanders says.

Cloud storage, in particular, has facilitated an unprecedented level of communication between lawyers working on claims together.

Mr Afshar, a self-confessed Dropbox fan, believes cloud storage options minimise the risks of the wrong document being used, or of files being corrupted as they are shared between parties.

“People don’t use Dropbox that often,” he says.

“But if you have to email [a document] to yourself and then back to yourself, there are a lot of versions. Documents become unruly, get lost or the computer crashes.”

Mr Sanders points to the capacity to use cloud storage to create a centralised database for discovery documents, which solicitors, barristers and clients can all feed into.

In some ways, certain lawyers have always been more collaborative than others, he notes, and the level of collaboration is heavily dependent on the circumstances of the file and the personalities involved.

Nonetheless, technology is opening new opportunities for lawyers to work together – although not all barristers have embraced the cloud.

“It’s not used that much in the profession,” Mr Sanders says.

“I have no doubt that it will be used more, particularly with the new school of lawyers who view collaboration in a different way from the generation before us.”

However, he encourages lawyers to weigh up the risks of using a third-party source to store confidential client information.

“I adopt things like encryption, because I worry about those risks,” he says.

Mr O’Sullivan agrees, suggesting that electronic systems inherently contain a degree of risk that requires nuanced evaluation.

“That comes with the turf and you just have to deal with it and make sure the systems are secured as best you can,” he says.

In his view, leaps in communications technology have made barristers “more accessible than they ever used to be”. Yet he does not believe this new accessibility has changed the relationship between barristers and their clients or instructors.

“It might change the way we interact with the client, in that the contact we have through solicitors is far more immediate, so it might indirectly affect how clients perceive us,” he says.

“But our core values are fierce independence [and being] specialist advocates and specialists in the law. Technology doesn’t impact on that.”

Communication is also flowing more freely within the profession following the advent of virtual networks. Social media platforms, including LinkedIn and Twitter, allow barristers to maintain personal relationships with colleagues they may otherwise only see occasionally across the bar table.

“Very often, you may not see someone or appear against them for some time – but now we are all in touch to a certain degree,” Mr O’Sullivan says.

Mr Sanders has experienced firsthand the benefits of an online network. His clerk has built a substantial internet presence, including a searchable directory of contact details for members of the barristers list and archives of CPD videos and papers.

“Solicitors are able to engage with us without even contacting us. They’re able to watch one of the CPDs I’ve delivered in the past. That concept wasn’t available 20 years ago,” Mr Sanders says.

For the public, the internet has opened a window into the seemingly shuttered world of the bar. The ABA, as well as state bar associations and law societies, publish regular updates on their websites and use social media platforms to communicate on major issues.

Functions such as the ‘Find a Barrister’ page on the ABA website also allow members of the public to choose an advocate with the right skillset.

“That’s one way the bar is more accessible – you can find out who [barristers] are and read more about them,” Mr O’Sullivan says.

Digital Court

Of all the institutions within Australia, the courts may be the one that relies most heavily on ceremony. While the look of courtrooms has evolved with the times – from gold plating at Federation to garish orange plastic in the 70s – the reverence accorded to the court is largely unaltered.

An emphasis on ceremony has not, however, prevented courts from using technology to facilitate appearances.

Witnesses have long had the ability to appear via video-link. A virtual courtroom trialled in Brisbane last year by Western Sydney University took the concept a step further, with judges, lawyers and witnesses all appearing remotely on screens.

But even the more traditional courtrooms are becoming increasingly digitised, according to Mr O’Sullivan.

“We have e-filing, we have electronic case management systems, e-discovery, electronic court books ... A lot of this is cutting down paper and allowing things to be done more efficiently,” he says.

E-court books have become so commonplace that the Federal Court released a practice direction on their use last year. Similarly, Mr Sanders reports that he has, on several occasions, handed his iPad up to the bench to refer to a piece of statute.

However, he believes there are limits to how pervasive technology can become within courtrooms. While he is happy to use a tablet to look up reference material during a trial or schedule an appearance, he avoids taking electronic notes in court.

“The process of typing distracts from what people should be concentrating on in a courtroom. And looking at screens is something that has been known to upset members of the bench,” he says.

Mr Afshar agrees that technology has not evolved to the point where paper can conceivably be removed from the courts. As an example, he points to cross-examination, which often involves referring to a number of different documents in an agile way that allows the text to be displayed to multiple parties.

“I don’t know if there is a technology solution at the moment that allows for that level of complexity,” he says.

“It is a really complex set of interactions, which I don’t think you can do with what is available now.”

As a result, even quite tech-savvy barristers often rely on paper briefs for appearances. Mr Afshar confesses that in his chambers “we have boxes coming out of everywhere”.

The progression of technology within courts has come at a time when other traditions are also dropping away.

The Supreme Court of Victoria issued a ban on both judges and barristers wearing wigs earlier this year, following in the footsteps of other jurisdictions, including Western Australia, which abolished wigs in all courts in 2010.

Direct briefing is also on the rise, according to the ACC Australia 2015 Benchmarks and Leading Practices report. The survey found that 18 per cent of Australian organisations intended to brief counsel directly in the next two years.

To an extent, the traditions within the bar are changing and technology is playing a role in accelerating, or even directing, that change. However, this is not impacting on the core values of the bar, according to Mr O’Sullivan.

“It doesn’t affect the values of independence if you attend court with a brief done up in a pink ribbon or a tablet.”

He also warns against conflating traditionalism with tech-phobia.

“Just because a barrister wants to wear a wig in a particular court doesn’t mean they won’t receive an electronic brief or won’t do an urgent opinion and send it off via email,” he says.

This view is shared by Mr Sanders, who draws a distinction between traditions that have a particular purpose – whether to confirm membership of a group or to enforce compliance with standards – and those that do not.

“There are many traditions that don’t go to the core of being a member of the bar, such as wearing a wig in court,” he says.

“Things like that will of course change as society changes around [the bar].”

Mr Afshar is unsure whether the role of barristers will evolve, but is certain that the possibilities open to them have become more numerous.

“I don’t necessarily think it will change the nature of the work a barrister does – it might – but I think it will bring a whole lot of other opportunities for barristers that weren’t there before,” he says.

As the bar becomes more tech-savvy, however, Mr Afshar urges barristers to consider the options open to them – often at a smaller outlay than they may imagine.

“The technology is there. It’s inexpensive overall, compared to what it was before, and it’s there to be used,” he says.

“I’d love to get to a day where, with a few clicks, you could prepare your materials for cross-examination on an iPad.”

Mr O’Sullivan, meanwhile, would like to see more recognition of how far the bar has already come.

“It’s interesting if you sit back and think – I think the bar has embraced technology more than we give ourselves credit for,” he says.