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Barristers should be ‘enormously proud’ of how they’ve managed the pandemic years
Australian barristers have seen a “generation’s worth” of evolution in the space of two years, Dr Matt Collins QC muses. That they have adapted so smoothly, and without adverse impacts to the justice system, is a credit to those professionals, he says.
Jerome Doraisamy
While the legal profession, and barristers, were already starting to adopt non-traditional ways of working — technology and flexible/hybrid working arrangements, among others — the pandemic accelerated the uptake of such changes “in a really extreme way”, Australian Bar Association president Dr Matt Collins QC said on The Lawyers Weekly Show.
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The pandemic, he reflected, “affected the way in which justice is administered, and we have to think really carefully about that”.
“We didn’t really have time to stop and reflect upon what it meant to be having more conversational hearings before judges over remote technology, rather than in the solemnity of the courtroom, and to have lost the ability to have those incidental conversations that barrister and solicitors are able to have while they’re waiting for their matter to come on or while they’re sitting at the bar table.
“What does it mean for cross-examining witnesses where their credit is an issue in a trial? Can that be done as effectively remotely as it can be done in the courtroom? What about appeals? When you argue a case on remote technology before a panel of three or more judges who might not be physically co-located in the same place, what does that mean for engagement with the bench? The ability to respond to questions on the fly, and what does it mean for our persuasiveness as advocates?
“I think there are all these issues which we’ve been forced to confront, but I’m not sure that we’ve yet properly analysed their implications,” he submitted.
To a degree, Dr Collins agreed, barristers across the board have had to rethink or relearn what it means to be at the bar — or, at least, what it looks like to practise law in such ways.
In the face of such change, there is a “plurality of views” from barristers, he said, as to whether there should be mourning for the way things were or excitement for how things are evolving.
While there is a “very strong view among barristers that justice is best administered in person, in the courtroom, and that too much is lost by shifting contested matters, particularly trials and appeals or anything involving a witness, to moving them online”, there are also those “with family responsibilities and from diverse backgrounds, for whom there have been real advantages in moving to hybrid ways of working and being able to continue their practices through virtual hearings”, he outlined.
Ultimately, however, Dr Collins said that he has a sense of pride in the extent to which barristers (as well as the judiciary and solicitors) adapted to operating in a world in which workplaces have been shut down.
“It is an extraordinary credit to our profession that courts continued to operate, albeit largely remotely, during a once in a century crisis,” he proclaimed.
“If someone had said to us in February 2020 that your workplace was going to essentially be shut for two years, and you’d hypothesised about what the world would look like in 2022 as we emerged from it, I think you would expect much more detritus, much bigger backlogs, many more endemic problems than we in fact have, and we would have also predicted that we would be much less effective at adopting technology and adjusting to new ways of doing work than we have.
“So, it was an awful period, but in crisis, there’s opportunity, and this profession has embraced that opportunity to a greater extent than I would’ve predicted.”
Barristers should share that sense of pride, Dr Collins went on.
“I think we should be enormously proud,” he said.
“For many people, you might have predicted we would never emerge from this. Those who have, and it’s the overwhelming majority of barristers who have emerged from the crisis of the past two years and are still standing and are still practising, they should feel an enormous sense of pride that they have kept their businesses going through a once-in-a-century challenge,” he said.
Looking ahead, Dr Collins is “really excited” about the prospect of embracing the opportunities that are arising from the negativity of the age of coronavirus.
“I am not one of these people who think we should simply go back to the 2019 way of doing things, because I think, as I said before, the changes we are seeing were not necessarily brought on by the pandemic; they were accelerated by it,” he argued.
“The future of our profession does not reside in resisting change for change’s sake. The future of our profession resides in keeping a steely focus on what is in the best interest of the administration of justice, but where there are better ways of doing things, considering them and, where are appropriate, adopting them.
“And, I’d like to see us emerge from this a stronger, more united profession, maintaining a focus upon the best way of conducting our businesses in order to serve the interests of our clients and the administration of justice.”
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Dr Matt Collins QC, click below:
