To prepare for Mishkeegogamang v. Canada et al. and Slate Falls v. Canada et al. (two actions merged into one), attorneys for two plaintiffs and three defendants would need seven copies of more than 4,000 documents.

Yet instead of hundreds of bankers boxes crowding the courtroom, I counted about seven. (One, I later learned, contained a printer.) That’s because parties agreed to forego paper documents for digital and view documents using monitors on their desks.

This one decision significantly sped up the trial by lessening time spent getting to a specific page multiple times each day.

And the best part? Electronic documents are just the tip of the courtroom technology iceberg.

If not in bankers boxes, where are the documents? Here’s a clue: Katrina Marciniak’s 4,000-plus document Summation database was 11 GB (and counting) in June. “We did the joint database weeks before the trial started,” says the associate with Oakville, ON-based Ross Scullion. “As the trial progresses, we may add documents to the joint brief.” All parties agreed to a protocol for adding documents ahead of time.

Marciniak throws in basic computing tricks on the fly. “We have many similar documents, prepared by different parties at different times,” she says. “To compare documents side by side, I resize document windows so each version takes half the screen.”

Where Marciniak’s trial resulted in fewer dead trees, the same can’t be said for Graham Underwood’s experience during William v. HMTQ in Victoria, BC. During this “hybrid” trial, parties used electronic documents in court while a separate room housed hundreds of bankers boxes containing the documents in print.

“The trial started before people were comfortable with a fully electronic trial,” surmises Underwood, an attorney with the BC Ministry of the Attorney General.

For all the efficiencies e-trials can deliver, they can crimp a litigator’s style. For instance, sometimes parties agree ahead of time on the order of documents to present each day. But that setup has its downsides. “As soon as you script your cross-examination, you lose the flexibility you enjoy if you’re not tied to a script,” says Underwood.

“That’s one of the tradeoffs. I don’t know what the answer is to that yet.”

Despite the technology questions and quandaries that crop up during e-trials, properly applied technology does cut the cost of legal services.

For instance, Underwood and Jonathan Penner state in their book Electronic Evidence in Canada that switching from print to electronic documents can cut trial times from a quarter to a half, thus reducing court costs as well.

“I examined a historical geographer for three full days, followed by two more days on cross-examination,” recalls John Ritchie, a partner in the Toronto-based firm Ritchie Ketcheson Hart & Biggart LLP. “If we didn’t have electronic documents, we would have taken at least two more days.”

Technologies other than electronic documents can also improve access to justice. Consider the need for testimony from witnesses who reside some distance from the trial location, or from convicts who represent security risks. Avoiding expensive and time-consuming travel arrangements in favour of in-court teleconferences further reduces trial costs.

Properly applied, technology can also improve the clarity of a closing. BC crown counsel and PowerPoint proponent Nils Jensen says “it’s so much easier to knit all your evidence together in a seamless presentation – your documents, your videos, your images.”

Yet for all their promise, e-trials remain rare in Canada.

“We do about two e-trials a year,” William Platt says, noting it’s just one of his company’s service offerings. “There is no business in Canada for trial support alone.”

That isn’t the case south of the border, where Platt, managing partner for Platinum Legal Group, claims many attorneys “use every bell and whistle that they can to advocate their client’s position. I believe it’s because you get greater damages claims in the US.”

“Because many of my colleagues are reticent or do not fully appreciate the benefits of using a document management system in a trial, and because the (Ontario) Ministry of the Attorney General has yet to get behind the initiative, the notion of an e-trial has to be counsel-driven,” says Ontario Superior Court Justice Arthur Gans.

Counsel may do as Gans advises, for several reasons. For instance, e-trials are a natural extension of modern legal work trends. “In the civil litigation group, we work exclusively on a paperless basis,” says Underwood. “All incoming correspondence immediately gets scanned into our file management system. I rely exclusively on the electronic copies. I never see the paper.”

Paperless workflows seem to be spreading as digital natives enter the profession and more lawyers get comfortable performing e-discovery. “When I started in this business it was all paper. Now it’s 40 per cent paper and 60 per cent electronic documents,” Platt says.

Meanwhile, certain governments now budget for e-trial equipment when courtrooms come due for renovations. And judges like Gans insist on e-documents when facing document-heavy trials.

Of course, there’s no discounting the competitive nature of the profession itself. “If you can show that you can be a better advocate for your client, there’ll be greater uptake on e-trials,” Platt says.

High tech on a budget

To outfit two plaintiffs, three defendants, a judge and a registrar, Will Platt figures the final tech bill for Mishkeegogamang v. Canada et al. and Slate Falls v. Canada et al. ought to top out around $10,000.

For simpler two-party cases, Platt suggests a $1,495 “e-courtroom in a box” package instead. (That package excludes things attorneys need to bring.)

Want to create your own e-courtroom-in-a-box? Use this short list of e-trial document management essentials.

Laptops

Attorneys bring their own, complete with litigation software, the joint brief and any software and other documents they need.

Document cameras

Bring a document camera to show any print documents not yet entered in the joint brief.

Projectors and screens, or monitors

Cabling for LCD projectors and screens is easier to manage than that for individual monitors on each attorney’s desk. That said, monitors may prove easier to read from.

E-trial tips and traps

To make the most effective use of technology at trial, consider the following pointers.

• Think about what you need to prove, then consider technology that helps you accomplish your goals – not the other way round. “Don’t get too technological unless it is going to be of genuine assistance to the court,” write Graham Underwood and Jonathan Penner in their book Electronic Evidence in Canada.
• Discuss your technology choices with the other parties, including the judge and court staff, before the trial.
  “Lawyers have to start the drive at the pre-trial stage, or earlier,” Justice Gans advises. “At that stage, trial office and court staffing teams can start the necessary wheels in motion.” Gans adds that the judge has to stay involved throughout the process.
• Even if all parties are tech-savvy, hire technical support. “Technology can be a distraction when you’re trying a case,” says Graham Underwood an attorney with the BC Ministry of the Attorney General.
• Back up your litigation database to an external storage device every day.
• Practice using your technology ahead of time so you perform effectively in court. Rehearse in the courtroom itself before the trial.
• With PowerPoint, less is often more. Whatever else you do, do NOT read bullets off your slides.
• “Bring a pointer,” advises BC crown counsel Nils Jensen in his 2010 ABA TechShow presentation Preparing for Your First Use of Technology in the Courtroom. “If you use your finger to point, remember your finger will be two feet across on the screen (image from a document camera), so keep it clean.”
• Before starting cross-examination of a witness over the contents of a spreadsheet, Underwood decided to attach two mice to the computer controlling the display so he and the witness could alternately control the screen.
• BC crown counsel Dan Scanlan suggests enlisting a forensics expert to help you present evidence from a confiscated computer exactly as it existed at the moment the computer was seized, using technology known as a virtual machine.
  “Digital evidence sometimes does not accurately or meaningfully render to paper,” he notes. In a virtual machine, “the desktop looks the same, the emails are where they were left, and so forth. The court can view the ‘virtual crime scene’ exactly as it was.”
• Don’t panic. If something goes wrong with one part of your presentation, jump to another part while the glitch gets sorted out. “We can handle curve balls,” Ritchie says, “just like the old pre-electronic days.”

Using maps in court

Not every document enters the e-courtroom in digital format, especially when the original measures ten feet by twelve feet.

Those dimensions belonged to a map used during William v. HMTQ. Parties used this large base map of a disputed area affixed to the courtroom wall to provide testimony.

An acetate overlay covered the map. “Witnesses marked on this map where they hunted, where their ancestors lived,” Underwood explains, adding that each witness marked their testimony on separate acetate overlays that were later digitized by a court-appointed cartographer.

“What we had was an electronic atlas of the claim area and you could pull out evidence about hunting activities, historic occupation of the claim area – any data you wanted.”

Video conferencing in court

Certain legal professionals resist the use of videoconferencing in court.

Why? “A judge wants to see the witness,” says John Ritchie, a partner with Toronto-based Ritchie Ketcheson Hart & Biggart LLP.

Ritchie recalls a witness having travelled to Toronto from just south of Pickle Lake, the northernmost point in Ontario accessible by road.

And he was fine with this. “I believe you have to have live witnesses in the courtroom,” he explains. “There must be human contact between the judge and the witness, unless there’s no other way to do it.”

The same phenomenon remains extant on Canada’s west coast as well. BC crown counsel Nils Jensen recalls one lawyer’s insistence on flying a witness from Toronto to Vancouver to testify. “After this witness was dismissed and sent back to Toronto, another issue arose with that same witness, which then required that lawyer to call the witness on short notice by videoconference,” Jensen recounts.

“The lawyer later said he couldn’t believe there was little difference between having the person in Vancouver versus having him testify by videoconference.”

A judge’s or lawyer’s insistence on personal appearances won’t always hold sway, though. Expert witnesses who might refuse to take time away from work obligations to schedule a court appearance might be persuaded to use videoconference facilities that are convenient for them.

Costs also influence this choice. Jensen figures one teleconference with a San Francisco-based witness saved more than $5,000.

Real-time court reporting

During trial, the attorneys participating in Mishkeegogamang v. Canada et al. and Slate Falls v. Canada et al. plug blue USB stick-like devices into their laptops. Those sticks wirelessly bring sections of the court transcript to each laptop’s litigation support software seconds after said sections are typed.

This technology, known as real-time court reporting, works like this: as the court reporter types, words are transferred to the reporter’s computer where software translates and formats them as they arrive.

The software holds the translation for several seconds before automatically sending it “to see what I write to make sure I’ve finished writing a word,” explains court reporter John Goddard.

The software then transmits the tiny tranche to every computer sporting the aforementioned USB device.

Goddard sends larger tranches of raw transcript to a scopist several times a day for cleanup. “The scopist sends the transcript to me at end of the day,” he says. “I proofread what he’s done, then send the cleaned-up version for lawyers to overlay on the real-time transcript.”

“It does not affect the notes lawyers take,” Goddard adds, surmising that the notes stay in place thanks to time indices shared by both the raw and polished versions.

Courtroom Technology Resources

Want to learn more about e-trials? Check out the following resources:

• Certain Canadian jurisdictions publish Electronic Evidence Practice Directions. Check your jurisdiction’s website for more information.
• Digital Evidence in Criminal Law, Daniel Scanlan (Canada Law Book)
• Electronic Evidence in Canada by Graham Underwood and Jonathan Penner (Carswell)
• Ontario E-Discovery Implementation Committee, “What Is An Electronic Trial?”
• “Preparing for Your First Use of Technology in the Courtroom” written by Nils Jensen and presented at the ABA TechShow 2010
• The CBA’s own collection of e-trial-related articles.

(Note: In this post, I included every part of the story I submitted to National Magazine. Here’s a link to what was published online, plus a PDF of the published article.)