originally published in Lawyers Weekly Magazine
Do you have what it takes to work in an electronically enhanced courtroom? Wonder no more — just take “Tom’s test.”
Can you:
- Turn on a computer and monitor?
- Use a mouse?
- Use the scroll wheel on your mouse?
- Open a program?
- “Drag and drop” or “copy and paste” text from a document on a CD to a word processing file on your computer?
If you can do these things, Ontario Superior Court Justice Thomas Granger says that you have all the skills you need to conduct a paperless electronic trial.
Granger’s colleague and fellow e-trial enthusiast Justice Arthur Gans learned about e-trials from a demonstration given by Granger and e-discovery consultant Martin Felsky. “I got pretty pumped watching their demo,” he recalls (so pumped, in fact, that he put “Tom’s test” and other parts of Granger’s presentation into his own e-trials slide show.)
“I was going into a six-month Competition Act trial, and there was no way the lawyers were going to hand me 3,000 paper documents!”
“Several things make you want an electronic trial,” says David Outerbridge, counsel with Torys LLP. Aside from document management, he cites the tools lawyers can use to demonstrate evidence as well as the ability to accommodate remote witnesses using videoconferencing.
Document management, though, remains the biggest e-carrot. “You can put whole cases on memory sticks, instead of handing judges five to ten bankers’ boxes of materials,” says Nils Jensen, crown counsel for the British Columbia Prosecution Service.
Gans has other reasons for championing electronic documents in trials, such as cost and time savings. Using a Justice Granger example, document access costs during a specific trial would have been $116,000 using paper. Granger figured those costs in his e-trial were $8,200, for a savings of $107,800.
“The savings are not incremental?—?they’re exponential,” Gans says.
While Chief Justice Neil Wittmann of the Court of Queen’s Bench of Alberta says actual cost savings are hard to document, counsel in one trial he cites “estimated that they saved about 40 per cent of the trial time that would have been needed in a paper trial, not including time saved by court staff in handling and storage of exhibits.
“Time savings either completely offset, or more than completely offset the cost of e-trials,” Outerbridge says.
“My time in writing the judgement, which is the back end of the trial, is reduced exponentially as well,” Gans adds. “Furthermore, if I’m appealed, the time it takes to get from the trial decision to the appeal is also cut. The documents are sent to the Court of Appeal electronically.”
“Enhanced understanding of large volumes of exhibits increases the accurate evaluation of evidence,” Wittmann adds.
Further cost reduction opportunities include the warehouses which store trial documents.
Jensen says “e-trials are useful when you have documents, photographs, maps, diagrams and other visuals. Video in particular is making inroads, given omnipresent security cameras, including those making their way into police cars and protective vests.
“Very few major cases do not have some audio or visual component,” Jensen says.
Certain habits enhance the value of e-trials. For instance, lawyers can hyperlink within their exhibits to other documents, which reduces the time it takes to pull up those materials.
Searching through collections of electronic documents for specific text (those on which optical character recognition, or OCR, was performed) also speeds up referencing.
Note: completely paperless courtrooms are about as feasible as completely paperless restrooms. Even e-trial enthusiast Gans prints some documents in court. “There are certain documents I don’t want to review onscreen,” he explains.
Start-up e-trial costs give certain lawyers pause. Gans suggests start-up costs might not be justified for trials involving less than 50 documents, although “if firms already have the infrastructure, they can all be done electronically,” he says.
“Certain triggers should alert counsel when an e-trial is advisable,” says Wittmann. “Our practice note identifies these triggers as, among others, the existence of more than 1,000 discoverable records or more than 3,000 pages, more than three parties or a trial that will take longer than ten days.”
Not that start-up costs need be onerous. “In my first trial, I had a laptop that I scrounged from one of the administrators,” Gans recalls. “One of the lawyers lent me one 19′ LCD screen, and we found another LCD under a desk.
“One LCD was in front of me, another LCD was in front of the witness, and we had a laptop controlling the whole deal,” Gans recalls. “My registrar learned how to put all the documents on the LCDs.”
Wiring courtrooms for jury trials is more difficult and expensive, so Jensen doesn’t expect courtrooms to go wired very quickly. “There are so many other pressures on government spending these days,” he says, “but as old courtrooms are renovated and new courtrooms are built, there’s a tendency to put in new technology.”
This tendency matters. “If technology is built into courtrooms and made easily available, lawyers will jump on board,” he says. “But if lawyers have to bring their own stuff, they’ll think it’s a hassle.”
To prepare themselves, lawyers need to assemble their own e-trial “kit bags” before strolling through the courthouse doors. Jensen recommends a laptop loaded with all relevant documents, a projector, screens, “and with extra money, get a document camera and you’re off to the races.”
“This can cost from $5,000 to $10,000 (and up) depending on the bells and whistles. But for smaller cases, I bring in my laptop, and court services may have a projector and screen and document camera.”
Jensen can’t explain the continued adherence to the “talking heads” style of advocacy. “This stuff is not rocket science,” he says. “It has been around in industry since the last century. It’s just the application in the courtroom that’s novel for lawyers and judges.
“If you were to walk in to an operating theatre 100 years ago and then walk into an operating theatre today, you wouldn’t recognize it, whereas if you walked into a courtroom 100 years ago to watch a trial and then did the same thing today, you wouldn’t notice much difference.”
Tech savvy isn’t a prerequisite for e-trial expertise. “I’m one of the quill and ink guys,” Gans admits, “but I’ve learned how to do this stuff.”
The author was quoted in this article by the National Post.