A New Law Ally

The pandemic brought about many new ways of working for lawyers, but these have set precedents in making the use of technology a must.

We have to agree that the other side of the coin is that some court proceedings are easier to access by moving them online. However, the introduction of something new can bring about much confusion when the transition is sudden and during a time when everyone is transitioning to a new way of life. The biggest concern, of course, being the integrity of people’s personal information, as we have all heard or experienced some sort of loss of important information online.

The Transition to Zoom

It was commendable that the Federal Government ensured that there was in fact public access. We saw examples of good stories but there have also been odd examples where courts have had to figure out how to conduct themselves on a zoom hearing. For defendants there were even bigger concerns such as: “How will remote hearings affect the quality of representation in cases, and the ability of respondents/defending parties to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the judge’s view of an individual’s credibility?”

These are obvious and very valid concerns because first impressions matter and this could have a major impact on the decision of a case in the Ontario Courts.

For judges the concern was to make sure they had ‘control’ of their courtroom, which meant getting familiar with zoom very quickly to make sure that distractions were avoided. In Toronto, members of the media did note struggles in obtaining access to court proceedings according to this Toronto Star article. [MOU1] The pandemic has caused a dead still in everything hence it is what you could call a knee-jerk reaction to a new reality which most would agree that, although intimidating at first, can be quite convenient[MOU2] . We must not expect perfect or entirely smooth court proceedings until we can organize ourselves and our use of available technologies.

Zoom Court Proceeding Etiquette

All virtual court participants are expected to conduct themselves as if they were in a physical courtroom. It is also expected that no recording or reproduction of any form will happen during the court proceeding. Rule of thumb is to make sure that your device is fully charged or at least plugged into a power source because video calls deplete battery faster than you can imagine. Background noise can be a distraction so it helps for you to be in a quiet place and it goes without saying that you should dress accordingly, if you are legal counsel you must wear business attire.

The judge makes sure that only one person speaks at a time as if it were a real courtroom. Participants will also want to avoid using speakerphones and have all their relevant documents in front of them to avoid having to excuse yourself during their proceeding.

But these are just some main and pretty normal things to do during a zoom court appearance. There are other things to remember like the orientation of your camera, what device you’re using (laptop, smartphone, etc.) and how it effects the angle of view for the judge and others on the line, whether you have any filters on that you may wish to remove so you don’t have to inform the judge you’re not actually a cat but just can’t turn off the filter turning your image into a cat face…

Best way to prepare if you’ve never used the app, of course, is to try it out. Do a test run, get familiar with the program and see what you look like. If someone can join the call with you, perhaps it would help in determining your audio clarity.

Where we are now

Since January 1, 2021, any party seeking a hearing or similar step in a proceeding that requires or permits the parties to attend a court hearing must propose whether the hearing should be heard (1) in person; (2) by telephone conference; or (3) by video conference.

Parties may object to the proposed method of hearing with good cause and reasonable grounds which makes for a very open system. If a party delivers such an objection and no consent can be come to in terms of the method of the proceeding, the Court may determine the method of hearing at a case conference.

Unreasonable objections to proceeding by telephone or video conference may be considered in awarding costs.

Conclusion

We have to see Zoom and other video-conferencing tools like it as a new ally of the law because it has allowed proceedings to continue. Aside from this, it has also in some ways opened further access to justice as lawyers are able to take cases outside of their normal jurisdiction. It has also sparked new opportunities for new businesses and supporting software.

As we prepare to start to potentially look at a world post COVID-19 we must rely on technology to deal with the backlog that was created by the pandemic. What’s more is the possible opportunities out there!  This technology and new way of life in the legal field was introduced quite quickly. It asks the bigger question – what’s next?

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