‘Have you eaten?’ This was such a common greeting in Malaysia whenever we met prior to March 2020. Now it is ‘Have you been jabbed? First or second?’ What a sign of the times. I am sharing my reflections as a 56-year-old woman, practising as a litigator during the Covid-19 pandemic.
Like many in March 2020, I thought the pandemic would be over by the end of that year. Fast forward to July 2021 and Malaysians are in the throes of the worst wave of the pandemic, and its strictest lockdown yet.
I count us as lucky that the courts had moved to electronic filing and e-reviews (online case management) a few years prior to the pandemic. However, all hearing of applications, trials and appeals were still conducted in the courts.
In 2020, when remote hearings were mooted, most of us were in revolt. We have unstable internet connection. We did not have the right equipment. We were not trained to argue matters before a camera. As for trials? Do not even think about it.
The reality was, we had no choice. It was untenable that cases could not be heard and it was simply too dangerous to appear physically in the courts.
The Malaysian Bar stepped up by funding the state Bars to purchase equipment and upgrade the internet services in their offices. Lawyers could then go there to conduct remote hearings. The Bar also held webinars to help us cope with the use of technology and to upgrade our skills.
The digital divide has never been wider. For those in big cities, large firms, or who are at ease and familiar with technology, this move to remote hearings was less traumatic. Otherwise, it remains such a struggle to cope with remote hearings when lawyers appear alone and must deal with screen-sharing soft copies of voluminous documents. Even with someone assisting me, I still find it a challenge to conduct remote hearings. I continue to be surprised to be able to see judges in such close-up!
With each lockdown imposed on us, more law firms started to close. Lawyers, like many others in Malaysia, became destitute. Despite reducing our annual subscriptions and cancelling the Lawcare and Sports contributions for the second year in a row the Lawcare Committee of the Bar saw an increase in applications for financial assistance. Work simply dried up. For those of us lucky enough to have new briefs, getting our clients to pay remains an issue.
Mental health concerns – something we lawyers never used to discuss – became a matter we had to cope with. Fortunately, we may avail ourselves of five free counselling sessions with qualified counsellors and the Bar pay for it.
Our next generation of lawyers are also having it tough. Graduates are facing a big challenge to find firms in which to do their pupillage. Their learning is also stunted because with remote hearings, the courts will only send Zoom links to the firms having matters with them. One of my fondest memories as a pupil was to walk into any court to watch lawyers and judges at work. I learnt so much just by observing the good (and the less stellar) lawyers argue in court. I saw how judges preferred certain styles and realised that each judge was different in what they preferred.
Bonding with other pupils from the same cohort is another key component of pupillage. It is a shame that with the lockdowns and remote hearings, there is practically nowhere for pupils of the same cohort to bond, become good friends and keep those friendships as they become more senior at the Bar.
As for women lawyers, what is happening to us? In a recent study by the American Bar Association, Practising Law in the Pandemic and Moving Forward, it was revealed that more than 35% of women lawyers were thinking of working part-time. It is also alarming to note that 37% of women lawyers were thinking about quitting entirely. We do not have such a study in Malaysia, but I fear the statistics would be worse. We still bear the brunt of housework and childcare, especially when our children are studying from home. A silver lining? Men who were not aware of the daily grind of housework and childcare can now better appreciate the work their partners do!
I am embracing the challenge of doing better at remote hearings and cannot wait for my first full trial by remote hearing. I am curious to discover how different it will be to cross-examine a difficult witness when we are not in the same physical space. Maybe you can teach an old dog new tricks after all.
Honey Tan Lay Ean is the sole proprietor of Tan Law Practice. She is the former Executive Director of the All Women Action Society (AWAM) and a current committee member in the Malaysian Bar Family Law Committee and The Middle Temple Malaysia Alumni. Besides being a Family Law practitioner, Honey is also involved in public interest litigation, mainly in the areas of equality and non-discrimination.