E-trials seen as ‘essential’ for justice in the future

The only one of its kind in Toronto, Courtroom 807 at 393 University Avenue is outfitted for “electronic” trials, a trend many in the legal community see as essential to the evolution of the Canadian justice system.

E-courtrooms aren’t new. Room 807 has been “wired” since 1997, costing $250,000 when it was first assembled, according to Michael Fernandez, manager of court services for Ontario’s Superior Court of Justice. “It doesn’t cost any more than a regular courtroom to use,” Fernandez notes.

Room 807 is clearly no ordinary courtroom. For instance, flat-panel monitors sit at each desk, on the judge’s bench and the witness box. During a trial, each screen shows documents displayed by the court registrar as determined by a previously agreed-to road map for the day.

Documents enter the courtroom via physical media, like laptop hard disks and USB memory sticks (a document scanner lets lawyers put hard-copy documents on the screens), since wireless Internet access isn’t yet available and the court doesn’t (yet) allow usage of its servers to store documents.

(Should this change, documents could arrive via a court-administered e-filing system — which doesn’t yet exist).

Handling documents electronically remains the main draw for e-courtrooms. “Doing trials electronically cuts court time by at least 25 per cent,” says the Honourable Justice Arthur Gans of Ontario’s Superior Court of Justice.

“I use a lot of paperless technology to prepare for trial, and to have to convert all my documents to paper would be onerous,” says Kelly Friedman, a litigator and partner with Davis LLP.

Fortunately, much of the preparation needed starts with ever-more-widespread e-discovery practices. “You’re moving seamlessly from e-discovery to e-trial,” Gans notes. “It’s the next step.”

Gans insists anybody can set up an “e-courtroom” for $1,500. “That buys you a laptop and two monitors (one for the witness, the other for the judge),” he says, noting that lawyers scan their own documents. “They are the main things that help reduce your time in court.”

Room 807 also features other technologies. For instance, people have testified in room 807 from as far away as China, Australia and Pakistan, as well as from prisons and other Ontario courthouses, using its “telepresence” equipment. (Room 708 features similar equipment.)

The remote witness’s voice comes through eight concave speakers mounted on the ceiling, which also supports four dark glass security-camera-like bubbles through which the remote witness can see the whole courtroom.

Friedman is of two minds on telepresence. “When you examine witnesses, you need to look them in the eye and develop a rapport,” she says. “You can’t do that as easily if you do it remotely.”

But she supports telepresence should it prove the only way to obtain testimony. “It could improve access to justice in remote communities,” she says. “In some family law cases, I imagine it would be better if certain people were not in the courtroom together.”

The Honourable Madame Justice Fran Kiteley of Ontario’s Superior Court of Justice wasn’t fond of the picture quality during her trial in 807. “Last September, I saw flat-screen technology at a conference that was just awesome,” Kiteley says. “You would think the person was right there.”

Lawyers can request and judges can grant Internet access using wired connections at each desk, though not all lawyers will bother asking for it. “I’ ll just bring my Rocket Stick,” Friedman says.

A mobile screen holds four black styli resembling dry-erase markers and a disc-shaped eraser on a blackboard-style ledge. This “smartboard” lets lawyers “mark up” documents on-screen.

An equipment storage area built into the wall to the judge’s right contains a number of components, including DVD and video cassette players.

One low-tech vestige sits on the court reporter’s desk: a dual-cassette recorder. “That will soon be replaced by a digital model,” Fernandez says.

In fact, digital audio recording (DAR) is coming to all Ontario courts. Improved sound quality and the ability to quickly find snippets of court conversation top the list of advantages over analog.

For all their promise, e-courtrooms have yet to reach a tipping point. As Friedman tells it, fewer cases go to trial and in those that do, clients demand the most experienced lawyers available to represent them. “It’s up to lawyers to request e-courtrooms, but senior counsel want to do things the way they’ve always done them,” she says. “Juniors may prepare digitally for a trial, then give senior counsel paper to mark up.”

She doesn’t think senior counsel are scared of technology. “That’s how they’re used to doing advocacy,” she reiterates.

The e-courtroom implies a steep learning curve, but Gans scoffs at such concerns. “I’ll be 65 this year,” he says, in an overt use of reverse ageism. “Tom Granger was the first guy to do an e-trial, and he just retired at 75!”

E-courtrooms might crimp advocacy styles. “In paper-based trials, some lawyers like to flip through documents and carry books, adding a small flourish while asking a witness to explain an apparent contradiction,” Friedman says.

“Suppose you have an expert witness on the stand who has written a paper on the topic under examination,” Kiteley adds. “Under cross-examination, in a paper world, defence counsel asks a question, then asks about something written on a prior occasion, and shows the witness a journal article.”

“In a case I was on, the lawyer could not walk up to the witness, who was in Florida. The lawyer had to mail articles in a sealed brown envelope to be opened by the witness when told to, under cross-examination.”

Kiteley notes that shared document facilities aren’t always available in places where witnesses give evidence. “Reciprocity is very important,” she says. “It requires more foresight, more planning on the part of the cross-examining lawyer.”

Friedman, who also chairs the Sedona Canada steering committee, admits she has yet to litigate in an e-courtroom like room 807. “But I’m chomping at the bit,” she asserts.

“If we get shorter trials and reduce time worked by judges, court staff and lawyers, it pays for itself quickly,” she adds. “And if 807 is used, there will be more funding to convert more courtrooms.”

This article originally published in Lawyers Weekly Magazine. For a PDF of this article, click here.

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