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Legal Notes: The jury’s out on the future impact of virtual hearings

John Bleasby
Legal Notes: The jury’s out on the future impact of virtual hearings

Modernization of processes previously in place for years is challenging. No industry knows that better than construction. When it comes to modifying the way building are put together, the status quo is a powerful adversary.

The same applies to legal proceedings. For example, paper filings can now be replaced by using cloud-based platforms like CaseLines.

CaseLines is described as “a user-friendly cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings.”

It seems very straight-forward. After registering with the system, users can file and upload them and then invite other lawyers to view them online.

The apparent advantages of such electronic processes might also apply to virtual hearings. Surely it would be more efficient to conduct examinations and trials virtually, with legal representatives and judges in their respective offices.

But like so many things, it depends.

Eric Sherkin, commercial litigator and partner at Miller Thomson LLP, understands both sides of the coin. On one hand, he acknowledges the momentum associated with the status quo and the resultant challenges to making substantial changes. Conversely, there is the need to address change.

“The worst reason to do something is because it’s the way you’ve always done it. That is, unless the way you’ve always done it has proven to be the best way,” Sherkin told the Daily Commercial News.

In terms of online hearings and document sharing, he sees the ultimate solution as a mix of the old and the new, largely because the benefits offered by certain long-standing processes could be lost.

“I think there’s a happy medium.”

When asked about how virtual hearings could, for example, reduce the travel complexities associated with in-person hearings, Sherkin admitted there are times when avoiding commutes from the Toronto GTA to an outlying courthouse could make things easier, and even more so for law firms well outside metropolitan areas required to travel inbound for hearings.

As for witnesses called to give evidence, Sherkin said there may not be much of a difference, except in cases where long distance travel is expensive for clients.

“I would be surprised if an expert witness would be unwilling to take on a file if required to travel to a courthouse to give evidence. It’s how the system has worked forever, even before the pandemic.”

In fact, COVID has in many cases accelerated the use and acceptance of online hearings and document sharing.

“There was a lot of modernization of our system that was long overdue that was finally implemented out of necessity,” Sherkin said. “A lot of modernization had been recommended by the attorney general’s office, or at least by people who have been working there for many years. But the issue was always the cost. However, we were put in the position where the system was paralyzed from March 2020. The courts were closed. They were not able to operate. We could not gather in person.”

However, not all parties to a case will see online documents and virtual hearings in the same positive light. Larger firms hold certain logistical advantages.

Sherkin explained large firms have resources such as support staff to hyperlink documents, ensure they have the correct nomenclature, and then uploading them in a manner that can be easily manoeuvred by the other party’s representatives.

Sherkin explained smaller practices don’t have that capability.

“If I was a sole practitioner in a small practice, I would have to do that more hands-on.”

He sees it as a possible issue relating to access to justice.

“It’s not all applicable equally.”

As for ZOOM-type virtual hearings, there’s much still to be determined. WiFi quality, the multiplicity of screens and monitors required to keep notes and documents organized, and the maintaining of traditional court decorum must be considered.

“Certain modernizations needed to be done as a necessity and were long overdue,” Sherkin concluded. “Hopefully we can keep those things that actually improve the system and figure out which ones don’t.”

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments Legal Notes column ideas to editor@dailycommercialnews.com

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