26 January 2021 by and Dispute Resolution Alert

Lockdown and turbocharged lawyers

2020 saw South Africa’s lawyers jolted from their suits and briefcases into an electronic, virtual realm, turbocharging a change that had certainly started but was progressing terribly slowly. Many lawyers will tell you that since the beginning of April 2020, they haven’t printed a document, had a face-to-face meeting or physically appeared in court. Some will even confess that although they spend most of the day in meetings, consultations or even in court over Zoom, Teams or one of the other similar platforms, they haven’t worn long trousers or closed shoes for many months. Zoom suits are a reality!

CaseLines, the virtual platform for filing of pleadings, notices and documents, has transformed the administration of court files, saving judges and lawyers time and significantly reducing the frustration that came with missing or incomplete court files. Documents are uploaded remotely, securely filed and paginated and immediately available to all parties including the judge. Filing a notice or pleading, which could take a candidate attorney an hour or more, now takes minutes. But the exhilaration of an in-person hearing is missing as is the rite of passage that is organising and paginating a large, dusty court file on a court bench. In virtual hearings, parties can ensure that the relevant documents appear automatically on the judge’s computer screen and, in fact, parties are able to make their own notes on the system, confidential to their team. They can effectively prepare and run their matter off CaseLines.

Many hearings are now held virtually, meaning that time spent commuting to and from court is eliminated and lawyers and judges can deal with their matters from anyplace they can find bandwidth and a quiet space. Of course, that flexibility brings challenges with hearings interrupted by boisterous children, deliveries and barking dogs, all oblivious to the fact that they are interrupting a very serious High Court trial. 

The turbocharged change into the electronic realm will be assisted by the codification of rules relating to electronic document discovery in the High Court which came into effect on 30 October 2020. ‘Discovery’ is the process by which parties to an action are made aware of all documentary evidence that is available and parties may, prior to trial, request the sharing of documents relevant to their respective cases for use in evidence. This codification is crystallised in the definition of ‘document’ to include ‘any written, printed or electronic matter, and data and data messages as defined in the Electronic Communications and Transactions Act [No 25], 2002’ (the Act). The Act defines ‘data’ as ‘electronic representations of information in any form’ and ‘data messages’ as ‘data generated, sent, received or stored by electronic means’, including voice recordings and stored data. Previously, the word ‘document’ was not explicitly defined in the High Court Rules as including data and data messages.

This development may be more theoretically interesting than practically significant, as litigators have been grappling with the discovery of electronic documents and data for some time, but this amendment will assist in streamlining electronic discovery. There are, of course, concerns that we might ultimately embrace a US style system where, because of the massive extent of electronic data which might be relevant to the matter, discovery becomes a huge and expensive undertaking capable of being managed only by the use of consultants with expensive software. This warning is tempered by the positive implications of electronic discovery. Printing reams of bundles for the purposes of disclosure of documents can be immensely costly both for a client and for the environment. Access to a host of electronic documents - documents that were previously undiscoverable - also offers an attorney the chance to discover evidence that strengthens a client’s claim, or which shows at an early stage that the claim should not be pursued.

Lawyers tend to resist change more than most but 2020 has certainly seen a remarkable and positive change in the way that lawyers work. That is to be welcomed. But we cannot, not for one second, forget that the jolt into the electronic realm, that turbocharging of the legal world, was brought about by a global pandemic that has taken the lives of so many. A silver lining to a very dark cloud.

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