May 14, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
One of the few positive outcomes of the COVID-19 pandemic has been the quick change in work processes for those who are able to work form home. We’ve all embraced (or at least tried to) video conferencing and virtual meetings. Those of us without young children at home have discovered that it is easier to have a good work life balance when working form home.
The legal profession has been slow to change historically, however, this pandemic has forced change at a lightning speed. Where lawyers and clients and mediators would once have spent hours in travel to do a discovery, we can now all log in from our homes and go through the process without wasting time, energy and saving our injured or disabled clients the difficulty of attending meetings.
We are doing negotiations via video calls, and holding meetings. Many of us find that we are getting much more done in a day than otherwise, or that we have more time to focus on other matters when we eliminate the driving times from our days.
Courts are also evolving, with judges comparing refusing video conferences to using ‘quill and ink’. Courts. The LawTimesNews.com has reported Justice Frederick Myers as saying, “In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators,'.
In his May 4 decision Arconti v. Smith, 2020 ONSC 2782, Justice Myers rejected a lawyer’s objections to proceeding with a video conference mini trial. The lawyer argued that his clients (plaintiffs) were concerned about being separated from their lawyer, and also concerned that it would be more difficult to determine the demeanour of defendants. Finally, they argued that the court would suffer as the trial would be robbed of ‘solemnity and a morally persuasive environment’.
Justice Myers addressed the issue quite extensively,
“In my view, the simplest answer to this issue is, ‘It’s 2020’…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.”
… “[t]echnology is a tool, not an answer,” and delaying trial due to “an amorphous risk of abuse” would not be acceptable.
Justice Myers also noted that this in this case the witnesses were legal professionals and the case was in fact concerned with whether a lawyer had properly advised the plaintiffs during settlement negotiations.
“While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined,” said Myers. “While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood.”
“In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden,” .
Justice Myers noted that the courts have a responsibility to help those uncomfortable with technology by referring them to training and educational resources and that “Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings,” wrote Myers. “In other words, just as all litigators have had to learn how to deal with juniors conveying information during an examination or argument in court, there are ways to do the same thing with technology. . . .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.”
As with all new things the technology will take some time to get used to, and there will be a period of adjustment and refinement. The COVID-19 crisis has been the impetus for the courts to modernize. If they do not do so they risk being overwhelmed with case backlogs when the epidemic is over.