Smoke-free apartment buildings, condos rare in Ontario

Smoke-free apartment buildings, condos rare in Ontario

December 31, 2007

Toronto civil litigator Jonathan Miller says working on his first electronic trial was a challenging and eye-opening experience.

“The first thing I learned about electronic trials is that if you’ve never done one before, it’s going to take much longer than you think,” says Miller, an associate at Shibley Righton LLP.

In an interview with AdvocateDaily.com, he details his recent experiences working on a two-week e-trial.

One aspect that ate up time, he says, was dealing with differently formatted documents. Looking back, Miller says it’s important for both sides to agree well in advance as to how to format documents and what document management system to use.

“We were putting together a joint book of documents and the other side was using one document management system while we were working with another. The two were not really interchangeable,"" he says. Ultimately, both sides used a Microsoft Word index with hyperlinks to each of the documents.

“The other factor that I didn’t really take into consideration was how the other side might organize the index,” he says. “I would have preferred it to be organized in a different way but we made it work with the way that it was set out.”

Miller recommends both parties get on the same page about documents before anyone starts doing any work to avoid having to reformat later. He also recommends that all documents be scanned using optical character recognition so that text documents can be searched for keywords.

He says one of the difficulties with the e-trial was having a set of annotated documents which the questioning lawyer would use while having a separate clean copy to be displayed for the court and the witness.

"This ultimately required me to ‘drive’ the display of documents for the court and the witness while the partner I was working with used his own laptop with the documents to view his annotated copies," he explains. "This approach does not lend itself to a lone lawyer conducting an e-trial."

The e-trial also involved an examination of a witness via Skype, which Miller says required plenty of forethought and pre-planning.

“The witness lived in another province and we estimated she would testify for about an hour," he says. "It didn’t make much sense to fly her in so we sought permission from the judge to do the examination via Skype, and he was fine with it.”

Miller says the witness attended a local examination centre, which would be able to handle any potential technical difficulties on that end. Going with a pro rather than having her Skype from home gave Miller peace of mind knowing he wouldn’t have to worry about the witness's personal computer shutting down in the middle of the examination.

“Through doing a test call with the examination centre ahead of time, we needed to troubleshoot how everyone in the courtroom could see and hear the witness,” he says.

Of course, that didn’t rule out the possibility of technical difficulties in the Toronto courtroom.

“In order to use Skype, you need an Internet connection,” he says. “There was no WiFi in the courtroom so I had to tether my laptop to my cellphone after we were told the network jacks in the counsel desks didn’t work.”

Miller says he feared the cellular signal would drop off so both sides agreed the laptop would remain in the one place and counsel would move to it when they wanted to ask questions.

“We didn’t want to risk dropping the call if we moved the laptop around the courtroom,” he says. “In Toronto, tethering can be a viable option but I would imagine this would be difficult in more rural areas where cellphone coverage can be spotty.”

Technically, things went off without a hitch but Miller says the only limitation he noticed with the Skype examination was that the witness couldn’t see everybody in the courtroom.

“As I was going through the examination, the laptop was facing me but if the trial judge wanted to ask a question I would have to relay the information to her,” he says. “I discussed with the witness beforehand that if I put my hand up, she should stop speaking. That was our signal that something was going on in the courtroom.”

He says one thing that wasn’t considered until the last moment was that if the witness wanted to swear on the Bible, she would need to have one at the examination centre.

“She wanted to affirm so it wasn’t a problem, but it’s another example of how many different aspects of an e-trial must be considered ahead of time.”

Miller encourages anyone who is preparing for an e-trial to reach out with any questions or concerns they may have.