originally published on CBA PracticeLink
Certain high-profile trials have proven the value of technology usage in courtrooms. Yet most trials in Canada still do without even common technologies, like video conferencing, document management systems and document displays.
And this absence spawns dissatisfaction. “Clients complain that the process costs them more money than it should,” says Gordon Kelly, a senior lawyer for Blois, Nickerson & Bryson. “They expect technology.”
“Why do you think banks have become electronic?” The Honourable Justice Thomas Granger of the Superior Court of Justice, Ontario, asks matter-of-factly. “Banks have realized that you save money doing it. The government does the same thing.”
“But the passport into (Ontario’s) legal system is paper.”
Kelly figures technology, judiciously applied, can save between $100 and $150 per file. “Multiply that by the dollars you can save across Canada, and we’re talking millions of dollars. That’s a lot of money,” Kelly says.
“And anything that reduces costs increases access to the justice system. If we don’t promote it, we’re doing a disservice to our clients.”
Origins of an e-courtroom
Pure, unfettered necessity has birthed some of Canada’s most technologically enhanced courtrooms.
“British Columbia had the Lockerbie case,” Kelly offers by way of example, and with it came what Kelly termed “a horrendous, unbelievable amount of evidence.” From the preparations for this crucible of a trial, a specialized courtroom materialized. “It’s almost a model for digital courtrooms,” Kelly says.
Glenn Smith, a partner at Lenczner Slaght Royce Griffin LLP, mentions a similarly outfitted courtroom in Toronto. “If you have a Chapter 11 in New York and a CCAA in Canada, you can have two judges seeing each other in parallel courtrooms and coordinating the filing of documents and making an order in both jurisdictions at the same time,” he says.
The Honourable Madame Justice Fran Kiteley heard a trial in this courtroom. She has nothing but kudos for the venue. From handling documents to allowing witnesses to testify from overseas, she found the tools enhanced the process. “This one courtroom has everything in it,” Kiteley says.
“It is almost never used,” she adds. “Lawyers need to know about it and they need to ask about it,” she insists.
New habits
Those who have experience with courtroom technology offer insights and tips about how to make it work.
Collaboration between lawyers
Sedona often shades the conversation when attorneys and judges discuss the handling of electronic documents in the courtroom.
“E-discovery and e-trials both call for collaboration,” says Smith. “In an adversarial system, you wouldn’t expect to find this, but in recent years, judges have demanded collaboration. And since more cases will be electronic, you have to pick up the phone and talk to the other lawyer.”
Smith also acknowledges the Luddite element. “For every jump in technology, there’s an equal and opposite knee-jerk reaction,” he says.
Granger mulls methods of dealing with this. “Assume one counsel runs a paperless office and the other says ‘I don’t use a computer so send me everything in hard copy.’” he says. “Is the first counsel entitled to reply ‘Here’s a CD, there’s a Kinko’s down the street?’
Collaborating with judges
Before a recent trial, “When counsel said they wanted to use edocuments, I said fine but I wanted two days of their time before the trial started to see how we could do it,” Granger recalls.
“Counsel thought just a screen and a projector would suffice, but for me to read a document on the screen, they were going to have to blow it up so large that you couldn’t put a whole page on the screen.”
“Then we thought of using monitors and a video splitter. That worked really well,” Granger concludes.
Increasing a judge’s productivity in court
Granger wants documents to be on his laptop once they’re admitted into evidence, and not to wait for the next break or the end of a day. “Judges can’t currently look at and make notes on newer documents while counsel prepares the next document for the judge’s consideration,” he says.
To efficiently accomplish this, CDs and USB memory sticks may have to give way to a shared file server.
Effective use of technology starts in a paperless lawyer’s office
Paper will always be with us, but any lawyer who enters a client’s contact information only once and scans every relevant piece of paper into a database can save all parties time and money on tasks like filling out forms on behalf of clients or sending documents to opposing counsel.
Videoconference
Videoconferencing attracts attention in judicial circles chiefly for the same reason it’s a fixture in business: cutting costs.
Dan Tanel, Chief Technology Officer for managed video services provider BCS Global, says that when courts videoconference with police stations, prisons and probationary services, they can streamline the arraignment process, improve public safety by keeping prisoners inside prisons and meet “virtually” with probation officers in the field.
Johannes Schenk sees value for clients and witnesses as well. “If you’re in William’s Lake, why do you have to come to a courthouse in Vancouver for a day to deal with a motion or give a piece of evidence when it can be done over videoconferencing?” asks the Vancouver-based litigator.
Video deposition
Sweat. A smile. Nervous tics. Easy hand gestures. These and other non-verbal cues contribute to the message people deliver on the witness stand.
Witness transcripts don’t furnish such cues, and that’s part of the reason why video depositions are making inroads in certain jurisdictions.
But video depositions can prove risky. That’s why Smith prefers to see witnesses on the stand rather than the screen.
“You don’t have James Cameron directing it and you don’t have Brad Pitt as the actor,” Smith says, “and you can’t do any cuts of the video of an examination under oath.”
“The lighting could be bad. The witness could be flat (in terms of body language). If the witness were in the courtroom, you could deal with it.”
Such concerns didn’t bother Schenk during a recent action his firm brought against the City of North Vancouver, which unwittingly provided him with a video deposition. Recordings of city council meetings reside on the City’s web site, free for anybody to download. So Schenk did just that and brought the video to court with him.
“The judge got to sit in on a council hearing as it happened,” he says.
Use of technology by jurors
Prior to a trial, judges instruct witnesses thus: do not do your own investigation, do not visit the scene of an incident, and so on.
Judges may soon want to add to this list instructions like: do not Google anybody in this room, do not Google any of the places mentioned, do not use technology to insinuate yourself.
Reports of mistrials in the United States due to unwise use of personal technology prompted Kiteley to suggest the above list, even though she doubts its effectiveness. “How do we adequately instruct jurors not to do these things?” she wonders. “How do we figure it out if they do?”
Barriers to using courtroom technology (and how to deal with them)
Despite the promise of today’s technology, it does not yet contribute to all trials in Canada for a variety of reasons.
Understanding digital documents
Paper boasts a familiarity that e-documents don’t. That lack can cause circumstances that make lawyers like Kelly forego technology-enabled trials: “If the lawyer on the other side doesn’t get it and if the judge doesn’t get it.”
Kelly uses pre-trial conferences to “read” the other parties, raising topics like metadata and digitally signed e-mail to gauge their grasp of e-documents.
Kelly’s effort makes sense since, increasingly, the only copy of a document is digital. Still, “if it takes too long to explain and the point gets lost,” Kelly says, “you’re better off falling back to the old ways of getting things done.”
Finding e-courtrooms
Outside of major urban centres, finding technologically-enhanced courtrooms can prove challenging, so even technophile lawyers and judges must prepare for “traditional” courtrooms.
That’s not to say lawyers must automatically ship bankers boxes. Smith recommends lawyers call trial coordinators in the town where they will work to tell them about what they want to use. “Trial coordinators are your allies,” he says.
Like many other lawyers, Smith wants to see courtrooms across Canada wired. “In my dreams, this would take one year,” he says. “In reality, more like three to five years.”
Cost
“I don’t believe we should have high-tech courtrooms in every court,” Granger says. “They simply cost too much money to set up.”
“But there are other ways to set up electronic courtrooms at a lower cost.”
As an example, Granger referred to a recent trial in Ottawa, where lawyers showed electronic documents using a video splitter, monitors for the judge, the witness and each counsel, and cables to hook everything up.
“It’s portable,” Granger says. “It took no more than half an hour to set up and half an hour to take down. You could throw it in the back of your car.”
Finding e-trial ready judges
Not all judges welcome e-trials. Still, if Kiteley’s and Granger’s outlooks are any indication, judges increasingly embrace technology in the courtroom, especially to handle evidence. “We are open to the idea of accepting one CD-ROM instead of ten bankers boxes,” Kiteley says.
“I’ve had good luck with computers in a courtroom,” Granger says. “I’ve never lost a file, mainly because I keep backing up so often.”
Nature of the jurisdiction
Smith points to Nova Scotia and British Columbia as regions whose judiciaries have embraced technology to a greater extent than other regions in Canada. Why the incongruities? And what can prod a province into modernizing judicial processes?
Maybe large, complex trials make the need for technology impossible to ignore. Consider: BC hosted the Air India trial. Nova Scotia handled the Westray mine explosion trial. Both trials were heavy on documents. And both provinces now boast electronic protocols for filing documents.
The size of a judiciary may also be a factor. Smith points to Nova Scotia’s relatively small bench, then says “You have 130 judges in Toronto alone. It’s harder to get consensus and make changes on a bench that large. That’s only natural.”
What the future holds
Incoming technologies may lessen the importance of the very bricks and mortar of today’s courthouses.
“Will we have a virtual courthouse?” Kiteley asks. “Will we all be at home in our pyjamas dressed from the neck up?”
Kiteley’s ideas resulted from her preparation for the (US) National Centre for State Courts’ 2009 Court Technology Conference. She will participate, along with her colleagues at the Canadian Centre for Court Technology, in the “Judging in 2020: in the Courthouse or in Cyberspace?” session.
Smith mentions widespread in-court Internet access that still hasn’t arrived for a bevy of reasons, not the least of which are security concerns. “Every document, everything you use must be on the hard drive of your computer,” Smith says. He envisions lawyers using web browsers to securely access documents remotely.
Kiteley also discusses the technology of tomorrow. “Will we have access to digital recording to do spontaneous playbacks, to push a button and get transcripts that allow us to do word searches, so we can find everything a witness said on a specific topic?” she wonders.
She has elements of this “dream” system today, but Kiteley hesitates to name – or endorse – today’s tools. “I just want a recording system that is accurate, accessible and allows me to manipulate text to prepare my reasons for decisions,” she says.