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From the Desk of Alon Barda - Rogers Partners LLP
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From the Desk of Alon Barda

Virtual Appearances – Let’s Not Turn Back

I recently took a look back to an article I wrote in October 2019. We were obviously in a very different time. The title of that article was “Promoting Efficiency in Litigation.” The last subheading in that article was entitled “Time to Embrace Technology and New Initiatives.”

At the time, I wrote that “I am confident in utilizing video conferencing and specifically look to schedule a discovery in such a manner if it is more practical and in consideration of costs.” Of course, I did not know at the time that within a few months a Zoom discovery would become the default choice and, in the process, lawyers would adapt and embrace the long needed shift towards a more virtual practice.

Here are some examples of different virtual appearances I have had recently and my overall positive experiences with each.

Examination for Discovery

I recently completed an examination for discovery with the deponent in Ottawa. Prior to the pandemic, I likely would have flown in to Ottawa the night prior and then arrived home late at night after a long day of questioning. Instead, I was able to complete the examination by the late afternoon without any lengthy and costly travel back home.

In addition, there were less breaks than what I used to experience and certainly no lengthy lunch break. It snowed quite heavily but there was no concern of any flight delays. Most importantly, I felt the discovery process was no different than if it was completed in person.

Appeal

I recently argued an appeal before the Superior Court. I used sync.com to upload the documents (we were still required to file our paper documents for some reason). Rather than a book of authorities, we were instructed to provide a compendium outlining the pertinent aspects of each case.

The process was seamless. It was very easy to upload the documents and they were available for review by the Judge and also by counsel before and during the hearing.

The Superior Court tweeted last week that CaseLines will be expanded to all jurisdictions in Ontario by July 2021. Through CaseLines, parties can upload electronic copies of their documents for review by all participants before and during a court hearing.

I did not use CaseLines for my hearing but I have heard of issues from colleagues with the process. In some matters, not all counsel are uploading their documents. Further, in some matters, despite the direction to upload documents, CaseLines is not being used during hearings. Hopefully, the court will be able to remedy these issues with further directions to counsel.

Trial Scheduling Court

I recall being sent for trial scheduling as a first year associate. I was all excited for my first appearance before a judge. That excitement ended when I walked into a packed courtroom with half as many seats as there were lawyers and after frantically asking half the room if they were there for matter 67. Then I sat for three hours before getting called to speak for two minutes. It was an inefficient process.

Last week, I attended trial scheduling court through Zoom. I knew opposing counsel was present as all names were visible. Matters moved quicker than in the past and I may have caught up on an email or two while waiting. It was an efficient process.

Mediation

I had a mediation last week. More shocking than the plaintiff’s demands was the amount of virtual rooms. There was even a room for the lawyers to meet if they wished to speak. All told, the travel time was removed and the mediation felt no different than it did in the past. Even the openings had the same effect.

The only thing missing was the mediator ordering lunch, or the sushi, fresh pizza, finger foods and more down the hall.

Takeaway

As I sit here writing, a vaccine is being shipped around the world that will hopefully bring some normalcy back to everyone’s lives. Whenever that does happen (and I hope it is really soon as I have four kids under the age of nine that interrupt at the worst possible times), I will certainly request virtual appearances whenever appropriate.

The cost savings and efficiencies are too great to revert back to an outdated practice. There will certainly be times when an in-person appearance is required but, when it is not, there is no reason to not proceed remotely – even if it is from an office rather than my basement.