Legal Technology Interview Series: Guy Pendell
In the third in the Legal Technology Interview series, Anish Patel, Practice Manager, Three Crowns and Basil Woodd-Walker, Counsel, Simmons & Simmons, interview Guy Pendell, Head of International Arbitration, CMS Law.
As counsel what steps are you taking to encourage greener practices when liaising with a tribunal and opposing counsel? Are there any technology tools that you are discussing or implementing e.g., within a procedural order or closer to a hearing?
We would consider having all hearings virtual, but particularly procedural hearings and also explore whether witnesses can give evidence remotely if they are not in the same jurisdiction as the venue for the hearing. As Counsel we offer Teams, and discuss with the tribunal how they prefer to receive documents (i.e. electronic or hard copy) and what options the tribunal would prefer for the presentation of evidence (e.g. electronic presentation of evidence (EPE) systems) at any hearing.
From an internal law firm perspective: as an international arbitration practice or firm what technology tools are you deploying to create a greener arbitration? What, if any, are the major barriers to change within a firm?
We use electronic disclosure and virtual case room systems to provide a common source for documentary evidence and case bundles. The usual technology tools (Teams, Zoom etc) are available for virtual hearings. We are also planning to equip some meeting rooms with better virtual hearing capabilities.
In relation to the use of paper documents, for some time CMS has been using technology aimed a nudging staff to reduce their printing needs and we are using far more collaboration technology to encourage work to be done in a common environment where the effort is captured, visible to all on the team and traceable.
The adoption of new technology almost always involves expense. That means it often has to fit in with a firm’s wider technology route map (and financial budget). Not all counsel are good advocates in pushing for technology to be adopted, often because they may not have confidence there will be sufficient demand to justify the initial cost, or a concern that without widespread adoption elsewhere, the technology will not transition to common use and will not, therefore, achieve economies of scale to be maintained and upgraded over time. Also, law firms have complex IT eco-systems. Prior to adopting new technology due diligence should always be undertaken to ensure the new technology does not introduce security issues for the firm. Not all providers are able to deal with the demands required of sophisticated IT teams in law firms. Security requirements across firms are not the same, although my expectation this will change a clients demand higher standards of security and encryption of data.
What, in your view, are the major challenges for the practice of international arbitration, with technology in mind, in order to achieve a greener arbitration?
In my view, there are two that eclipse all others in terms of creating greener arbitration.
1. Changing attitudes away from the need for in-person hearings: I still find very mixed views from counsel and arbitrators in relation to the perceived benefits and disadvantages of virtual hearings when compared to in person hearings. There are undoubtedly differences and, in my view, there are different benefits to both. Adopting more virtual hearings does require a different approach in some areas – for example, in the absence of physical meetings more effort may need to be put into maintaining good relations with opposing counsel in order to keep lines of communication open for practical and pragmatic decision making on procedural matters and to identify potential settlement windows. Recent trends in some jurisdictions away from lengthy witness statements (particularly those drafted by Counsel rather than in the witness’s own words) does have the potential to reduce the need for in person hearings and to reduce the duration of those hearings. More work could be done to make the expert evidence phase more efficient and focussed, such that expert oral testimony could be similarly reduced to only key issues.
2. Reducing the number of in person arbitration conferences: There are still a great many arbitration conferences around the world. It is difficult to see how these can be reduced since few venues would be willing to give way whilst others don’t. There is perhaps a discussion to be had across the arbitration community about the frequency of in person events. Recent large conferences have shown that there remains a strong appetite for them, where I suspect the collective carbon footprint of travel for them far exceeds that of any international arbitration itself. Using technology to ‘beam’ speakers from around the world to local conferences is a huge advantage and I have seen this work very effectively. Unfortunately, until virtual one-to-one meetings can effortlessly take place in the metasphere, I fear we won’t see a wholesale move to a virtual environment for conferences.
Lucy Greenwood, in her interview, said: “[t]he minimum that parties should be able to expect is that their tribunal is technologically competent”. Can the same be said of counsel in the context of responsibilities to clients and when liaising with a tribunal?
In my experience, yes. I look for lawyers who are not only technologically competent but are interested in the development and adoption of technology tools for lawyers. However, I do find that the understanding of the technology now available to counsel is not consistent. That can lead to conservatism in its adoption in contentious matters as change or progress is sometimes viewed with suspicion as a perceived attempt to gain advantage rather than to drive efficiency.
During an in-person hearing and from the perspective of a cross-examiner or counsel presenting a witness for examination, are you open to this being done remotely? If so, are there limits to when this may be appropriate (e.g. only where the witness is expected to be presented for no more than 30 minutes and/or if the length of flight is over a certain threshold)?
Yes, I am, but it might depend on the specific case and facts relevant to the witness. I would also want to have a specific AV for such virtual cross-examinations, and I would expect most tribunals also to have their own views on this. I don’t think the duration of the witness’s evidence or the distance to be travelled should be the determining factors.
What are your tips for practitioners when working electronically? Are there any particular tools/software that you use or describe as “must-haves”?
I am a huge fan of GoodReader on my iPadPro. I have used that for merits hearings as it allows hearing bundles to be fully downloaded (and updated) and is very user friendly. It also allows you to prepare cross examinations and submissions using bookmarks within the App. I am also starting to explore ‘reader’ tools, where text is converted to audio. I am not at a point where I am able recommend it. In fact, I don’t think we’re there yet. I’d like to see reader tools that would allow the user to use voice controls to highlight or bookmark key text passages which could be revisited later either in audio or written form, or shared with teams.
For larges cases, we regularly use Opus 2 or similar technology, and we are exploring new EPE tools coming on the market. For any virtual hearing, good EPE is essential. It doesn’t have to be a system provided by a third party to work effectively. Well organised indexed and bookmarked pdfs are fine provided everyone is working to the same versions and the internal numbering of the bundles is consistent with the pdf electronic numbering! (A tip, always make sure the index itself gets numbered too and you should be fine.)
Recognising that some tools, including the use of videoconferencing and even email, have some environmental impact, how do you seek to overcome this as part of your individual practice?
This falls within a firm’s wider commitments to net-neutral or net zero, including the sourcing of (green) energy. We also adopt specific practices to try to minimise the environmental impact, including properly turning off devices when not in use, rather than leaving them in ‘sleep mode’. I also take this opportunity to encourage a far more judicious use of email for all parties!