Litigating Behind a Computer Screen: Thoughts on Our First Virtual Trial Victory
It comes as no surprise that law firms across Canada, and, indeed, throughout the world, have had to adjust and adapt to the current times by going completely digital. Daily in-person meetings and interactions with colleagues and business partners have been put on hiatus as we anxiously await an end to the COVID-19 pandemic. And as more of us continue to work from home, video-conferencing software (such as ZOOM), will only become more and more prevalent. Meetings that previously would have been conducted out of an office can now be conducted from within the comfort of one’s home. With no more than a couple of clicks of a mouse, meetings with anywhere from two to two-hundred people are underway. Even monumental events, like court trials, have entered the digital world. This is simply the new reality for today’s lawyers.
After courthouses across Canada shut down due to COVID-19, criminal and civil proceedings have turned to virtual trials as a way to push hearings forward. This comes as a new challenge to lawyers across the country – especially for the most-seasoned of lawyers who have been conducting trials in a traditional manner and within traditional venues for the majority of their careers. However, moments and challenges such as these are the very things that will help to define and shape a successful lawyer’s career heading into the future. Successfully navigating these obstacles will not only prove how successful these lawyers are, but also how adaptive they are – which is vitally important because the litigation landscape is always changing.
In order to see how this new legal paradigm works, we checked in with our Huntsville commercial contract dispute lawyers, Partner David Morin and Associate Peter Reinitzer, who were the first lawyers at Will Davidson LLP to conduct a virtual trial. The matter they were litigating was a negligent building code case against the Township of Lake of Bays (Breen v. The Corporation of the Township of Lake of Bays, 2021 ONSC 533). Their advocacy skills lead to the recovering of $361,875.33 for their client (the decision is currently under appeal). Here is what David and Peter had to say about this case, their experience in virtual litigation, as well as their advice for other lawyers who will be bringing their litigation skills to a computer screen in the future.
How did you prepare for your virtual trial? Did it differ in any way from your usual trial preparations?
“A lot of the substantial trial preparation was unaffected by the virtual format. The legal research, formulating the theory of the case, identifying the key evidence that we needed to elicit, and the development of our witness examinations were all pretty similar to our usual trial preparations.
The big difference was in preparing ourselves and our witnesses to elicit the evidence and convey our theory of the case in a virtual setting. First of all, on a very basic level, this meant ensuring that we and our witnesses were equipped with the technology necessary to participate in a virtual trial. Second, we had to make sure that we were all comfortable conducting the trial online. Thankfully, our clients and witnesses were already well versed with Zoom technology, so our biggest task in this department was ensuring that we, as lawyers, understood how to refer to documentary evidence, photographs, and reports, so that witnesses and the court could seamlessly comment on and process evidence. Our trial clerk needed to make sure that she was well versed in PDF preparation of indexed briefs and file sharing to ensure that all trial participants had access to the same electronic documents. Familiarity with Caselines as a file-sharing tool will become crucial as it becomes the norm province-wide.“
What was it like communicating with your team virtually on a consistent basis? How often did you meet leading up to the trial?
“This trial took place in November 2020, so many months into the pandemic. By this time, our office had already become accustomed to weekly Zoom meetings during which we could discuss files and check in on one another. Thanks to those meetings, our team was already quite accustomed to meeting virtually. In pre-Covid times, it wouldn’t be abnormal for our trial team to meet on a daily basis in the weeks before trial began. While these impromptu meetings weren’t an option for us this time around, we had no difficulty calling one another or having Zoom meetings – scheduled and impromptu – when we needed to discuss the file. Daily phone calls were the norm, and we would meet on Zoom multiple times per week.
The bigger challenge for our team was definitely communicating during the trial itself. In previous trials, David and I, as co-counsel, would be sitting next to each other at trial, and could discreetly whisper to each other when necessary. Our clerk would typically be nearby and we could communicate with her by passing sticky notes when appropriate. This all became impossible in a virtual trial, as we were all separated in our respective offices. We could occasionally send emails to each other, but by and large, we found we were unable to communicate to the same degree during the trial itself.“
Was it harder to read body language behind a computer screen?
“Definitely, if for no reason other than that there was less “body” to be seen on the screen. Often, the camera would only capture a witness’s head and shoulders, and so things like hand movements and fidgeting were impossible to see. That being said, facial expressions were occasionally easier to perceive on the screen than they were in person. One big difference with the virtual setup is that the judge could see witnesses directly from the front whereas, in court, where witnesses are sitting to one side of the bench, a judge would be limited to more of a profile view. I cannot comment on whether or not His Honour found the direct view helpful, but it is definitely a change from the norm.“
Did anything come up during the virtual trial that you didn’t anticipate, and how did you navigate that situation?
“Possibly because the presentation of evidence in this trial was relatively straightforward, and definitely thanks to our previously-gained familiarity with Zoom, there weren’t any huge surprises participating in the trial virtually. The one time something did come up – and I still cringe months later as I think back to this – is related to my use of the “share screen” feature on Zoom. After I had finished referring to a document that I had put up on the screen for all trial participants to see, I closed the document and proceeded with my examination, forgetting that I still had the “share screen” feature turned on. This means that, instead of seeing my face, the trial participants could see whatever was on my screen. Neither His Honour nor opposing counsel mentioned anything, and thankfully nothing of significance appeared on my display before I noticed my mistake. Still, it’s definitely not a mistake I’ll make twice!“
Do you think virtual trials are a continual option moving forward? What advice would you give to lawyers conducting them in the future?
“Virtual trials will no doubt be an option for the near future, as current practice directions have indicated that most civil trials will be conducted virtually at least for the rest of this year. As in-person gatherings in courthouses become safe, I imagine that trials will gradually shift back to being in-person. That being said, I do believe that the profession will continue to embrace the convenience of virtual advocacy, perhaps for discoveries, mediations, motions, and pre-trials.
My main advice to lawyers conducting virtual trials in the future would be to make sure that everyone involved is comfortable with the virtual technology. Make sure you have at least one virtual preparatory meeting with each witness during which they are using the computer, camera, speakers, microphone, and internet connection that they will be using at trial. Make sure you and your witnesses are comfortable referring to the relevant evidence. On that note, make sure all parties and the court have agreed upon the method to be used in referring to documents and tendering evidence. We had a trial management meeting with defence counsel and the trial judge to hammer out these procedural issues prior to the commencement of trial, which I would highly recommend. Make sure you have contingency plans for when technology fails. Everyone should have phone numbers they can call if they are unable to connect so that all parties and the court know what is happening.
Lastly, do not let the virtual setting distract you from the fundamentals of trial advocacy. Online or in person, you are still selling a story to the court backed by compelling evidence and sound legal analysis. Make sure the judge is engaged while you are making your pitch, and make sure you weave compelling evidence in argument into your case to ensure that your pitch is, in fact, engaging. And if you want to emphasize a certain picture, if the court allows it, by all means, use “share screen” to make your point. Just make sure you turn it off when you are ready to move on!“
Will Davidson LLP has been operating remotely since the start of the pandemic. By making good use of our technological assets, we have been able to succeed and continue to push forward in the realm of virtual litigation. Our experience in operating in a fully digital environment makes us fully prepared to handle Ontario’s personal injury and insurance defence needs in modern times.
If you or a member of your family has been a victim of a commercial contractual dispute, contact Will Davidson LLP to schedule a free, no-obligation consultation. Our team of commercial contract dispute lawyers has decades of experience representing Ontarians and has the expertise to help you secure the financial compensation you deserve for your disputes. Reach out today to learn how we can help.