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Lawyers need to rise to challenges of e-trials

2016-08-30

In spite of the challenges associated with the growing popularity of e-trials, lawyers need to be comfortable with this technological development, or risk falling behind, Toronto civil litigator Jonathan Miller writes in Lawyers Weekly.

As Miller, an associate at Shibley Righton LLP, says in the article, in Bank of Montreal v. Faibish [2014] O.J. No. 1639, Justice David Brown promoted the need for lawyers to adapt to advancements in technology to provide services to their clients, comparing it to the change from vinyl records to digital music formats.

The crowning virtue of e-trials is mobility, explains Miller. "Consider this: in 1159465 Alberta Ltd. v. Adwood Manufacturing Ltd.[2010] ABQB 133, the parties replaced 18 three-inch binders with a single DVD. The parties and the judge were no longer tethered to a room full of boxes to work on the file or write the judgment. In particular, Justice Adam Germain, in his commentary on the trial, noted the significant benefit: ‘I did not have to lug boxes of exhibit copies around — the relevant information was all in the memory of the laptop.'"

Another reason to promote the use of e-trials, he explains, is their role in reducing trial time, given the search capabilities of a document index.

At the same time, Miller writes, e-trials still present several challenges, including operational knowledge of the equipment and the software being used to manage the documents.

“An ever-increasing list of document management software exists. Some will run directly on counsel’s laptop (e.g. Summation or Primafact), others store the documents on a server and each party is granted access to the documents online (e.g. Ipro Eclipse). In either case, counsel may be faced with using software with which they are not proficient,” he writes.

Especially for smaller firms or those unfamiliar with document management software, Miller suggests using hyperlinks in a Microsoft Word or similar index.

Also, he explains, counsel will require two sets of documents, and likely, two laptops to display them: a “clean” set to display for the court and an “annotated” set for the examining lawyer.

“Preparing a second set of documents is not difficult. However, displaying the documents really requires a ‘driver’ while counsel conducts their examination of the witness. Counsel cannot simultaneously call up their annotated document, display the document for the court and prepare their next question. The need for a driver is of concern when it comes to costs, particularly for cost sensitive clients,” writes Miller.

Other challenges, he explains, include the limitations imposed on the trial judge and the witness to navigate documents, as well as possible issues related to the technology in the courtroom.

“If using an online document database, the courtroom will need Internet access. Tethering from a cell phone can be an option where limited Internet access is required: in fact we were able to examine a witness in Vancouver via Skype by tethering to a cell phone. However, cell phones do not provide a viable solution where cell phone coverage is limited or ongoing access is required (e.g. when using an online document database),” writes Miller.

Although these challenges will eventually be alleviated by software improvements and users becoming more technologically savvy, Miller adds: “until technology advances to a point that eases these challenges, lawyers will have to find ways to adapt to remain current in providing their legal services.”

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2016-08-30