With the Covid-19 pandemic and courts shutting down, courts and tribunals have been looking for options. Naturally, technology is where things turn. To give you a backdrop and context. I have been paperless since 2008. I use a cloud-based practice management system, go to courts or hearings with an iPad, use a portal for clients, use automation and AI software, and generally sit on the leading edge of technology. Where I sit technologically is essential for this story.
I am also a beta tester for Apple using a never crashing MacBook Pro, an iPad Pro, an iPhone, an app for clients. If there is something new, it’s likely; I am already trying it out.
I am acutely aware of what technology can do and what it can’t. For example, I go to court with my iPad only if I only need to ever look at one page at a time. Even with cases involving multiple witnesses, an iPad will get you through without any issues. If, however, I need to compare documents or see more than one copy (page) at once, well, the iPad won’t cut it, and you’ll need to bring paper.
Knowing the abilities and, more importantly, the limitations of technology is vital to using it efficiently.
Since the Covid-19 pandemic, courts have moved to use the phone, Zoom, Webex and some other platforms so that cases can proceed without contact. Zoom is the most commonly used in my experience. For this, I’ll refer to all platforms as Zoom.
Zoom hearings can be efficient, convenient and make possible what was not before. They’re ideal for simple types of hearings. Hearings like set dates, TBSTs, adjournments, guilty pleas, simple motions, some bail hearings and generally, things that don’t require having to assess a witness’s credibility are entirely workable.
Where I have trouble is witnesses. Setting aside for a moment that we have to pivot to a different type of advocacy. The persuasion tools have naturally shifted, and we no longer have the same tools in the toolbox. At a minimum, we need to adapt to how we can use them. Those tools had a purpose. To test the evidence and try to find the truth. We all want a fair chance at getting the correct verdict, or at least, the judgment we think is the correct one.
I watched Joseph Neuberger do a trial in July of 2020 in Brampton Criminal court. This was an in-person trial, not zoom. The judge made both crown and defence examine and cross-examine while sitting down. Exhibits had to be placed in a basket and, importantly, had access to all of them. Joseph couldn’t approach the witness, and you could see the changes affect both lawyers trying to use their existing tools. Both lawyers could still observe the witness testify. They could read the witness’ body language, see the nervous ticks, assess their credibility, and make informed submissions about how the Justice should weigh their evidence.
While some argue this can be done with Zoom, I respectfully disagree. For clarity, let me remind you that I think Zoom is perfectly acceptable to use for TBSTs, routine motions and basically anything not requiring a witness. I have some reservations about doing Appeals through Zoom, although I have watched a couple through Zoom, and they went surprisingly well. Zoom hearings (or some form of online hearing) have been going on for years now. Courts have been reluctant to go to electronic hearings. Court documents were on paper. We were still using actual exhibits, which would have been a nightmare.
I have done several Zoom appearances. Criminal set dates, a PHCs at the Law Society Tribunal, a Webex Pre-Hearing at RECO, Bail Pending Appeal by phone, and some other routine hearings that did not require a witness testify.
I respect many lawyers who have done a few trials by Zoom, and they swear by it. In particular, one lawyer told me he did twelve trials and got twelve acquittals, something he thinks would not have been the case in a courtroom. I think this might be the case for now but forever. To explain, let’s see what the issues with witnesses are.
When a witness is in the witness box, the parties, the lawyers, judges, and the public assess them. 90% of communication is non-verbal. Many times, the interest is in how a witness said something more than what they actually said. How do we assess credibility through a camera lens or, worse, over the phone? How do we make clear submissions on things we can no longer point to? Did they hesitate longer than other questions? Was it them, the technology, the question? Are they alone? Are they been fed answers? We only see their head.
SOME ZOOM REFORM ALREADY
Some say these issues can be eliminated using various fixes. Firstly, good to know we’re already finding patchwork solutions, but let’s consider them. Secondly, these are all untested ideas that the system will use without knowing how it can go wrong.
Someone suggested a 360-degree camera to eliminate any risk that someone was cueing them. My issue with this is we know we don’t need people in the actual room. There could be someone texting, messaging on their screen, and it would be totally unknown to the lawyers, the judge or anyone with skin in the game. How would people have this technology anyway? Some have suggested a particular room in the courthouse for this person. Respectfully, there is already a specific room in the courthouse for this—the courtroom.
Canadian legal history is replete with wrongful convictions. I am a proud member of Innocence Canada. Visit their website to see some of the horrible things that have happened. This was when people were physically there to be sized up. Judges, juries, adjudicators get it wrong. It is not much solace to tell someone, “Well, there is an Appeal court.”
Again, I am a huge advocate for using technology. I just think we need to be more responsible with it. People’s vital interests are at stake. PDF court informations, synched calendar adjournments, and even some electronic copies of exhibits can increase much-needed efficiencies, but we should be careful of how quickly we march on.
SOMETIMES THINGS GO WRONG
Recently, I had a near-disastrous situation. As a Beta tester for Apple, I always have the most recent OS. For years I have experienced only occasional bugs. I also bought a brand new MacBook Pro (October 2020). On a Saturday recently, I was scheduled to do a CPD by Zoom. I clicked to launch the meeting from the software-generated link and got a crash. This happened a few times; restarting didn’t help.
I panicked. Ran to my iPad and launched Zoom. My iPad also had a beta version of iOS. Luckily, it worked. This particular CPD required me to screen share. I barely got through it. The screen share cut off edges, was nothing like the Mac version of how the App works. Features were in different places. It was all I could do to keep my sanity as I went through it. I went away and returned Sunday night before I would get to work trying to solve this issue.
I scoured the forums and discovered this was a live issue Zoom was working on. Apple couldn’t rewind my OS easily; Zoom said they were working on the issue but could not commit to a date when releasing a working version. There would be no way to use Zoom off my brand new MacBook Pro. Already got rid of the Old MacBook Pro.
I had a hearing at the Law Society Tribunal by Zoom on Wednesday and Thursday. It was a case where putting documents, sharing my screen at specific times was necessary. Monday, I spoke with the Law Society’s discipline paralegal and explained the situation that I couldn’t run Zoom and would have to adjourn the hearing. She was sympathetic.
I considered borrowing a computer. Most of my friends use a PC, and it’s been years. I didn’t want to be figuring out the differences during a hearing. I also didn’t want to put sensitive documents on someone else’s machine. I quickly ruled this option out. I had to resign myself to the idea that there was no way I could do this hearing.
None of this would be an issue in an in-person hearing, which was set months earlier before Covid-19. In-person with witnesses, well, you know what I think about that.
The matter was put on a PMC (Law Society Tribunal’s version of a To Be Spoken To Appearance) the next day, just a day before the hearing was scheduled to go ahead.
While the Law Society could not consent to the application, they did not oppose the request. Actually, I don’t think they could say anything more than “They couldn’t consent.” A fair position for the Law Society to take. The Tribunal adjudicator, on the other hand, had zero sympathies for me. It was suggested I run the hearing off my iPad or my… wait for it…. phone.
The adjudicator went so far as to say he didn’t understand the argument as to why I couldn’t do the hearing off my iPad and wait for it…. I should be appropriately up to date on technology. My issue was that I was much on the leading edge, not the trailing edge. I was told I should invest in technology to be able to do the hearing. I found it ironic. Despite the admonishment for not being up to date, and I should invest in technology to participate in the hearing, the hearing was adjourned.
This adjournment request highlights the entrenched position in the overuse of technology. If you asked me just a year ago if I would ever say that courts and tribunals would be entrenched in the overuse of technology, I would have to reply you were crazy. Yet there I was with someone absolutely unsympathetic to my plight. Utterly unheard of that someone might have a technical issue in using technology.
I am one of the people you would get help from to do a Zoom hearing. If this can happen to me, it can happen to anyone. Time will tell, as it does with all things, what the correct answer will be. For now, I hope we proceed cautiously and try to remember we have people’s lives at stake.