A Case for Electronic Trials

As the vaccinated population grows and the global health crisis begins to stabilize, leaders in every profession face the question of what the work-life landscape should look like. In the legal community, we all need to take stock of the changes made out of necessity during the strictest lockdown periods and assess which of these are beneficial in the long term. 

The protocols that one firm establishes may differ from those laid out by a particular judge or court. Where we see these viewpoints collide is in the courtroom setting. How do we navigate court proceedings and trials with public health restrictions either significantly loosened or removed altogether? The best approach is likely a hybrid model that utilizes both in-person and electronic elements. The biggest challenge facing counsel, judges, and the courts they serve will be finding the right balance of technology as is appropriate for each matter.  

As is often the case, an abrupt disruption to “business as usual,” in any profession, brings to light inefficiencies and opportunities that were previously ignored or simply adjusted for. The advent of COVID-19 forced businesses to adapt quickly to remote working environments or risk becoming irrelevant. While the legal community didn’t face the threat of irrelevancy, we were presented with the weighty challenge of keeping the vital wheels of the legal system running. 

From an individual firm’s perspective, moving attorneys to a remote work situation was relatively seamless. With a laptop and a video conferencing tool, counsel can easily manage the majority of their caseload from a home office. For counsel who are not as tech-savvy, a remote work environment presents an opportunity to sharpen those skills with a minimal investment. 

When we move away from the home office and into the courtroom, we run into greater challenges. 

The move to virtual hearings and trials showed us that basic skills taught in law school are just as relevant in a virtual world — frankly, they're even more relevant. In the virtual world, it becomes more apparent when lawyers don't execute basic advocacy skills consistently. In other words, the quality of advocacy can be quite different because virtual hearings accentuate poor habits.

Here are two clear examples:

  • In the real world, when presenting in court, certain lawyers would never look at the judge. They would read from their written argument and would talk rapidly. And you could see the judge is not listening. They have no idea what the lawyer is saying because they can't follow along. The judge would say, “Mr. or Ms. So-and-so, I can just read what you've given to me. I don't need you to read to me what I can clearly read from your own written summary.” At least in the in-person world, you have a physical presence that creates a momentary relationship between speaker and listener and has the potential to capture a listener's attention. That is now nonexistent in the virtual world.

  • Another example is when dealing with materials, some lawyers with bad habits would say, “My Lord, turn to Tab 3 of the binder. I'm just going to read from the materials,” and then they start reading things into the record from an affidavit or from a case, or from their written argument. And the judge would constantly say, “Hey, stop Ms. X. Tell me the page you're on. Let me follow along.” In the virtual world, that problem is accentuated because it’s more difficult to say ”I don't understand where you are, let me catch up with you.” Lawyers also don't have an opportunity to see a judge flipping through pages in the binder and realize that they aren’t following along with them. However, for a lawyer with good training and practice, their skills can be very effective in a virtual situation. “My Lord, I am turning to the binder with the label volume two, I'm opening to tab 10, I'm going to page five. I'm going to paragraph B, the second line beginning with the words X, Y, Z.” These are good habits to have in-person, but they are absolutely critical in a virtual setting.

Another drawback of virtual hearings and trials is the loss of comraderie with my fellow lawyers. I miss shaking hands with opposing counsel that I've enjoyed working with and saying, “Hey friend, good job. I look forward to seeing you on the other side of another file.” This has been missing in the last 18 months.

But, there are also benefits to virtual hearings. My very first virtual hearing was at the Court of Appeal. If anyone has been to the Court of Appeal, you know you are standing many feet away from the judges. They are usually on an elevated dias and it’s difficult to see their faces, especially since there are three to five judges (or in the Supreme Court of Canada, up to nine judges) all staring at you from about 20 feet away. In the virtual hearing, I could see all the judges’ faces, and I could see them all at once. I could see their reactions and see when my argument was being successful or if I needed to further clarify. So, in a way, the move towards virtual hearings can provide opportunities that are not present in a live hearing.

Another recurring concern is how to maintain the integrity of court processes in a virtual format. A frequent example of this appears in discussions around allowing witnesses to testify virtually. From a client perspective, the ability to call witnesses virtually is cost-effective and efficient, eliminating any applicable travel expenses. A number of judges, however, including the Chief Justice of the Supreme Court of British Columbia, have strong views against remote testimony because of the increased risk of witness tampering. It is a valid concern as the feasibility of a third party prompting a witness off-camera during testimony is not a risk present in traditional in-person testimony.  

Yet another recurring challenge is the inconsistency between courts regarding electronic filing. Pandemic restrictions highlighted the need for electronic filings as in-person handling became impractical. Consequently, we have seen an increase in electronic filing, particularly the amount of evidence being tendered electronically. An added benefit of the movement toward electronic filing is the decrease in document production, a huge cost of modern litigation. While we have seen this movement away from paper filings, there is still a hesitancy with respect to accepting electronic signatures from witnesses. This is a roadblock in the evolution away from a “paperless” or “less paper” environment.  I think we ought to address this challenge with more professional awareness of the programs designed to safeguard document security. 

Looking at the broader picture of electronic trials, we have seen virtual formats used in both chambers hearings and summary trials with notable success. Teleconferencing is being used effectively in both the Court of Appeal and the Supreme Court of British Columbia. Given the complexity of each case, an entirely virtual experience may not be suitable for all parties, but I see a strong trend towards hybrid trials, with a mix of participation modalities. 

There is a certain majesty to the courtroom that can never be fully replicated through a screen. While I do not foresee a world where the physical courtroom is completely eliminated, I see the reality of a global pandemic that has forever altered the terrain of our profession. The adoption of technology on an individual firm basis and throughout our courts will strengthen the ability to serve clients and society as a whole.