Much has been said about the role of technology in law – and a technology-driven future. It’s reasonable to think that somewhere between the fanciful and the practical lies the real deal. The COVID-19 Pandemic has acted as a un-planned but strangely timely catalyst. With the most recent evidence of technology adoption being the use of video in both civil and criminal hearings, this is surely a time to stay on top of what’s happening – and where it’s going. Just a relative handful of individuals have that access or insight – Stuart McMillan is one of them. So it was indeed a great pleasure to spend time speaking with Stuart about legal technology adoption at the Bar – given that his role and expertise are on the very frontline of change.

David Kinnear

“I work to represent members of the Bar of England and Wales and to advocate for policies that uphold and improve their practising lives and the wider profession. My main areas of work are court reform, IT and Alternative Dispute Resolution.

– Stuart McMillan

David T Kinnear

In your own words, what do you do now – and how did you arrive at this role?
Stuart McMillan

Stuart McMillan

I work to represent members of the Bar of England and Wales and to advocate for policies that uphold and improve their practising lives and the wider profession. My main areas of work are court reform, IT and Alternative Dispute Resolution. I came to the Bar Council after some time in legal publishing, where I was first properly exposed to the world of English law. I didn’t really plan it all out, but got lucky and managed to land on my feet.

David T Kinnear

With your unique vantage point on legal technology adoption, what single issue or opportunity is #TopOfMind for you right now?
Stuart McMillan

Stuart McMillan

I suppose I see it from the perspective of how it impacts individuals, and for that reason I feel that when it comes to adopting legal technology it must always be done in the public interest. Whatever is being adopted has to serve all those involved in the process. What I mean by this is that, if courts are going to go online, we need to ensure that all those involved still feel they have a stake in the process, especially those bringing and defending claims. This for me is the single issue that is #TopOfMind. I think, in the commercial space, new tech that can help with e-discovery or analytics is great. But whatever tech the legal sector is looking to adopt, it needs to be up to scratch. It is encouraging to see that the Cloud Video Platform is going to be rolled out across the courts as a standardised system — but we need to be certain that it works, ensures privacy, and doesn’t affect the right to a fair trial. It is crucial. This becomes even more acute when it comes to Litigants in Person and those who are in vulnerable positions going through the courts system.

David T Kinnear

Cutting through the noise, what is your perspective on the substantive state of the legal technology sector today?
Stuart McMillan

Stuart McMillan

It seems to be booming. I think it is a good thing that the legal profession is embracing the future and if it means more efficiency that is great. As I said, though, it also represents an issue we must tackle. For example, in France, it is now illegal to use technology and machine learning, or AI, to predict judicial decision making. Whatever you think about that, it does make the point that if this technology begins to look like it can game the system or detrimentally impact the rule of law, it is going in the wrong direction.

David T Kinnear

Which elements of legal technology do you see having the greatest impact on the sector through 2025?
Stuart McMillan

Stuart McMillan

Online courts is a big one. Prof Richard Susskind has said plenty on this and I tend to think what he says bears listening to. But the move towards online, and what this all means for open justice, transparency in courts, and upholding the rule of law, will quite rightly be a hot potato.

The other is probably AI and the various uses it can be put to. It might come down to the question of whether it threatens to take jobs from junior lawyers. Then it could become a more pressing issue.

David T Kinnear

Is the legal system really ready to embrace Court hearings via video – and how are people reacting?
Stuart McMillan

Stuart McMillan

I think on the whole we have all done very well so far. According to HMCTS, since mid-April 90% of all hearings were conducted via audio or video. We do not yet have numbers on how many cases have been adjourned, so that figure could be a less positive than it seems. But it’s not a question of embracing, it’s a question of getting it right first, then rolling it out. You shouldn’t be aiming to do it quickly and badly. In terms of how people are reacting, I think we are all aware there have been great successes and some teething problems. Sorting out those teething problems is the most important next step.

David T Kinnear

Can technology truly replace the in-person participation of individuals and their legal representatives?
Stuart McMillan

Stuart McMillan

If the technology is good enough, you might be tempted to argue ‘yes’. But there will always be certain cases involving sensitive issues or vulnerable parties or where the matter is just too complex which means they need to be heard in person. There is also the big question of how much scrutiny you are allowed via a digital medium. In criminal trials I think it is fair to say that the ‘in-person’ element will never go away for good reason — you really need a physical element for them to work properly. This is probably the case in some family proceedings, too. Perhaps there is an argument for hybrid trials, partly done in-person and partly done via tech.

David T Kinnear

What lessons can we learn from early adoption of video technology for hearings?
Stuart McMillan

Stuart McMillan

I think the main lesson is that it needs to done on a case-by-case basis and done with a thorough ongoing evaluation. This was broadly what happened and it would be a mistake if we changed things now. The other lesson is that it works, and people can do it. A lot of the early reluctance has drained away.

David T Kinnear

Looking ahead to 2025, what percentage of hearings do you think will be conducted remotely i.e. via video?
Stuart McMillan

Stuart McMillan

It’s impossible for me to say — I wouldn’t like to estimate! Six months ago video hearings were a rarity and now they are commonplace. It could easily go one way or the other after the Coronavirus crisis abates. Though the Lord Chief Justice has said things will never go back to the way they were, if you are looking for a more authoritative source than I.

David T Kinnear

Would you care to comment on the COVID-19 “litigation tsunami” some are anticipating in both the UK and US – and how we will navigate this?
Stuart McMillan

Stuart McMillan

I’m not really in a position to comment about whether it will happen or what it might look like. I think if it arrives, the backlog of cases the courts have been experiencing will become ever deeper — unless there is an explosion in the number of sitting hours. With any luck it will mean a lot more work for the Bar, who have been badly hit by Coronavirus and particularly at the junior end. It may mean the opening of new courts, or more cases being heard remotely. But again, using the situation as a reason to put cases online when they need to be in-person is not good. The wider use of ADR could help a lot. So it is something we will need to be vigilant about, I think.

David T Kinnear

Do you think Alternative Dispute Resolution (ADR) is a way to take some pressure off the Courts system?
Stuart McMillan

Stuart McMillan

I think ADR can really help in situations where litigation isn’t necessary or needed. In terms of taking pressure off the Courts, it certainly might. But I think to look at it in that context is not a good thing to do — arbitration or mediation should be used because it is the best option for the case, not as a crutch for the courts system.

David T Kinnear

What are your thoughts on the merits of Arbitration and Mediation as alternatives to litigation?
Stuart McMillan

Stuart McMillan

In situations where litigation can be avoided — and I stress that is not all the time — it is likely going to be cheaper, faster and probably less onerous for those involved. In mediation you can also determine your own settlement. Take that as a positive or a negative depending on where you stand, I guess.

David T Kinnear

Is each of Mediation and Arbitration a helpful alternative for all cases – or specific types of cases?
Stuart McMillan

Stuart McMillan

I don’t think any mediator or arbitrator would ever suggest that it is always a good alternative — there are some situations in which, for whatever reason, it just will not work, whether that is an issue concerning procedure, or the parties or whatever it may be. There will be plenty of cases in which mediation could work but arbitration cannot, and vice versa. I’m not sure it’s helpful to classify these by type. I think once there is an agreement that mediation and arbitration should at the very least be considered in every case that will be a healthy state of affairs. There have been a few relatively recent cases that have built up the debate around this issue, so I don’t think it is going away. I do think mediation and arbitration should stay out of crime, though.

David T Kinnear

Is the use of video for mediation and arbitration cases proving popular?
Stuart McMillan

Stuart McMillan

Online mediation has, for obvious reasons, seen a serious uptick lately and is I think a little easier to facilitate than moving a ‘legal’ proceeding online. Whether or not it sticks is another question, but it’s a trend which I am very keen to observe.

AND:

David T Kinnear

Who or what is your greatest inspiration?
Stuart McMillan

Stuart McMillan

I am always inspired by people who try to make a difference in the world, and do good. I think making a positive difference is incredibly difficult, and those who manage to do it are the real heroes.

David T Kinnear

What is your favorite quote?
Stuart McMillan

Stuart McMillan

It’s not a quote per se, but I like ‘know thyself’. It was one of the Delphic maxims, and I think it can be interpreted in several ways all of which are useful.

David T Kinnear

What do you do for fun?
Stuart McMillan

Stuart McMillan

I like music and play guitar; I like to cook; I like to run. When I am not reading around my work I love a good novel or history book.

Stuart McMillan

About Stuart

Stuart’s work at the Bar Council includes working on new and ongoing efforts to improve the practising lives of barristers.