Ontario lawyers have been warned to learn to live with videoconferencing for pre-trial hearings as the COVID-19 pandemic restricts people from in-person sessions.
A judge of the Ontario Superior Court of Justice has ordered the parties in a civil lawsuit to do the pre-trial questioning of a witness — usually held in a law office with groups of people — via video, despite the wishes of one side for a delay because they want to be beside their lawyer.
“In my view, the simplest answer to this issue is, ‘It’s 2020’,” Justice Frederick Myers ruled last week. “We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”
The video taking of evidence was supposed to take place Wednesday.
It’s an example of how the COVID-19 pandemic is forcing one of the most traditional (and paper)-bound institutions in the country — the courts — to adapt to technology.
Courts are largely closed across the country due to physical distancing restrictions. So provinces and territories are now allowing lawyers to file electronic copies of documents rather than piles of paper for civil cases and land title changes. That way the legal process can continue. While most criminal trials are suspended, videoconferencing is being used in bail hearings so accused people don’t have to spend any more time than necessary behind bars, as well as pre-trial case management meetings between judges and lawyers.
But perhaps the most significant change may be the use of videoconferencing for pre-trial hearings called discoveries. A discovery in a civil trial is the equivalent of a preliminary hearing in a criminal trial: Witnesses testify under oath so both sides can evaluate what they will say and how credible they appear. If, for example, a witness is hesitant about a fact or recollection one side may be willing to either abandon the civil suit or agree to a deal.
Typically discoveries are held at a law firm with several lawyers or support staff for the sides facing each other across a table. Witnesses are questioned and documents passed from one side to the other. With a videoconference, the lawyers question witnesses via webcams. The more witnesses the more people on the call. Some may be in an office, others in their homes. There has to be some control so people don’t speak over each other — or leave their microphone on at an inopportune time. (See this story for an embarrassing moment this week during an audioconference before the U.S. Supreme Court) If a witness or lawyer can’t leave their home, the proceeding can hinge on the quality of their connection. Each side has to ensure that documents to be referred to are sent to witnesses ahead of time.
The Ontario case involved an unnamed group of plaintiffs convicted in 2013 of securities fraud. Now they are suing their former lawyer for allegedly not properly advising them during settlement negotiations with the Ontario Securities Commission. After their appeal of the securities conviction was rejected in 2018 the group continued their suit against their former lawyer on two grounds. In January, Justice Myers dismissed one of those grounds, leaving only one left. That prompted the accused lawyer to ask the judge for summary judgment — a decision without a trial. Not without a discovery first, Myers said.
The plaintiffs objected to a videoconference examination, arguing they needed to be beside their lawyer during the discovery to assist with documents and facts, because it is more challenging to assess a witness’s demeanour remotely. The lack of physical presence in a neutral setting “deprives the occasion of solemnity and a morally persuasive environment,” and because they “do not trust the defendants (their former lawyer and his current lawyer) not to engage in sleight-of-hand to abuse the process.”
In his decision, the judge noted Ontario’s rules for civil proceedings have allowed for the use of video/audio conferencing for 20 years. Initially, all sides in a lawsuit had to agree, but in 2008 the province gave judges the discretion to order remote conferencing where appropriate.
Myers said that while “abuse of the technology” during a discovery is possible — for example by putting a second monitor opposite a witness or using a Bluetooth earpiece so they can be prompted unseen by the other side — the lawyer in this case who has to testify has a reputation to think about. On the other hand, he admitted a room full of lawyers would add solemnity and focus to a witnesses’ attention.
He also noted that earlier this year another Ontario judge refused to order a two-day hearing be held by videoconference in the face of objections from one side.
But he also cited an Australian case this year where a judge ordered a six-week civil trial to be held by video. There were objections that lawyers needed to be sitting at a table beside each other for consultation. But the judge noted that in pre-trial hearings lawyers were able to message colleagues in the middle of proceedings through WhatsApp.
As for the ability for a judge to evaluate witnesses in person, the Australian judge said, “I am staring at the witness from about one metre away [on a monitor] and my perception of the witness’ facial expressions is much greater than it is in Court. What is different — and significant — is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction informality in the proceedings.”
Myers noted that videoconferencing platforms offer breakout rooms where a lawyer can privately consult with colleagues during a hearing. “We are learning new ways to do things and they feel less ‘good’ because we do not yet have the same comfort with the technology that we have with our tried and true processes,” he admitted.
But, he added, “In my view, in 2020, the use of readily available technology is part of the basic skill set required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise suddenly. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings.”
Myers and other judges admit videoconferencing isn’t the solution for all hearings. But in this case, he said the benefits outweigh the risks.
“The most obvious benefit is that litigation will not be stopped in its tracks [by COVID-19],” he said.