PDF format, sync.com, Zoom, email, screen-sharing, host, co-host, muted, video feed. These words are now part of the parlance of the new and improved court system…at least in some Ontario jurisdictions. However, in other Ontario jurisdictions, Jurassic Park is still alive and well and unfortunately for the people that we, the legal profession serve, dinosaur judges still rule the planet in those jurisdictions.
Just prior to the strike of Covid19, permission to attend by teleconference, any court appearance was unheard of. Out of necessity, teleconferences have now become the norm. However, Zoom is not the norm. But, this is changing in some places.
For example, a very enlightened judge in Ottawa, Justice Audet of the Ontario Superior Court of Justice, scheduled a trial to be conducted entirely by video conference. Here is what Justice Audet did to manage the use of technology:
Every witness to be called at trial swore an affidavit of their testimony and if that witness was to be cross-examined then they would do so by Zoom conference. Wow!
The court registrar was to be the host and the judge was the co-host of the Zoom conference. That makes perfect sense!
To manage documents, the sync.com document sharing platform was used. All affidavits were to be assembled in one searchable PDF document called “Joint Brief of Affidavits” and all other documents were to be assembled in one searchable PDF document called “Joint Brief of Documents”. A table of contents and bookmarks was used to organize each affidavit/document and uploaded to the sync.com platform. Nice and neat and tidy!
In case of technological difficulties, phone numbers were to be provided to the court’s registrar and counsel of every witness and every witness was to have the phone number of the court’s registrar and counsel. You never know when technology might fail!
In the case of a witness who is uncomfortable with the technology, a third party could provide assistance only if permission is sought beforehand. Don’t worry grandma, we’ve got you covered!
Each witness is to receive a copy of the Ontario bar Association’s Best Practices for Remote Hearings: “On-Screen Tips for Counsel, Parties and Witnesses” at least two business days before the commencement of the trial. Don’t wear your pyjamas to court!
A witness can’t use the internet or review any documents or rely on notes unless permitted by the court. Don’t cheat!
A witness is permitted to refer to their own affidavit, those documents that might be shared on their screen with them, or documents referred to them by counsel during their cross-examination and emailed to them in PDF format. Don’t worry, you don’t have to memorize everything!
During witness examinations, the video feed is restricted to the trial judge, the witness, the examining lawyer and opposing counsel. Other than those individuals, and the registry officer, all other participants would be muted and would have no video feed (their faces would not be shown on the screen) during the time they are giving their evidence. No peeking!
During breaks, participants are to be muted and turn off their cameras for the duration of the break, rather than disconnecting from the Zoom session. At the appointed time, participants shall turn on their cameras to signal that they have returned from break. Remember to come back!
During these breaks, while the witness is giving evidence and until the completion of such evidence, the witness shall not communicate with any other persons about the substance of their Examination. The witness may communicate with counsel or another person while on a break prior to the commencement of their cross-examination, provided that any such communication is consistent with the counsel’s professional obligations and applicable rules of the Court. Don’t compare notes with other witnesses!
Technology made simple. More Zoom, please!