Civil litigation should rely on centuries old ideas for wisdom, not the day to day operation of the justice system.
Surely if the Bubonic Plague could end serfdom, and the Spanish Flu could help trigger the Russian Revolution, then the current pandemic, which has shut down the economic and social activity of virtually every country in the world, could change the way courtrooms in BC do business. We actually have the capacity today to continue with the current trial schedule without violating social distancing rules or putting anyone at risk of infection.
Litigants now are often waiting five or more years to have their cases heard. Do we really want to make that worse by blowing a three to six-month hole in the trial calendar simply because we don’t utilize what we already have at our collective disposal?
This affects more than just litigants and lawyers. Think of all the support staff that currently have their employment interrupted because court is not in session. If not the people then think of the damage being done to the reputation of our system of justice itself.
There are over 200 million daily users on Zoom right now. I am sure many of those people are doing something every bit as significant and sensitive the typical civil litigation case. Let’s join the rest of the world!
Every professional connected with civil litigation has, or should have, all of the necessary equipment at their disposal right now, complete with the technical support necessary to use it. In the world of virtual mediation I see lawyers literally making it their business to ensure their clients are able to fully participate regardless of their circumstance.
Need that eyeball to eyeball contact? You have it with the common man’s version of video conferencing — Zoom.
Is it as good as in-person? No! Will it suffice? Yes! Definitely! Particularly when you compare the potential disadvantage of rescheduling literally months of trials in every single courthouse in the Province.
Surely the Chief Justice can authorize appropriate guidelines on viva voce evidence to apply during a defined pandemic time frame to preclude potential appeals on this issue? Fairness of process in other areas can be maintained in a virtual environment by the legal minds currently charged with such process related issues modifying the Rules of Court.
Worried about security? The last I heard, with the exception of a comparatively small number of cases, our judicial system is a public process. Existing technical support staff can be trained to keep out the gate-crashers, just like security personnel do in the physical world.
What about record keeping? Turn on the record button on Zoom and you have a complete and faithful audio and visual record of the entire proceeding. In real time. At a substantially reduced cost. Finally! Judges can listen without having to make copious notes (all others no longer have to wait for the scribbling to end before making the next point).
If you really need a more traditional transcript, Court Reporters have computers and WIFI too. So do other court officials for that matter.
How about the exchange of documents and submission of exhibits? Scan and upload to a shared cloud folder. Email pdfs.
Private conversations between litigant and counsel? Text during the proceeding if necessary. Phone or Facetime or Whatsapp on a break.
In a virtual world lawyers have all the resources of their offices at their fingertips in real time and it’s certainly better than having to drag around those big wheeled brief cases.
Worried about the inevitable expense of re-configuring existing assets and upgrades where necessary? Think about the wasted prep time, the expert reports that will have to be refreshed at great expense that’s happening as you read this.
Witnesses and litigants can participate from wherever they happen to be without fighting traffic or boarding planes or ferries. No more experts cooling their heels at $500+ per hour waiting for their turn to testify. The cost of maintaining court houses will be substantially reduced in terms of cleaning, heating, lighting, and attendant maintenance personnel.
It does not require huge amounts of capital or time to re-engineer in any event. Get out your computers, connect to your WiFi, make room in your home, or a nearby packaged office facility, or your office space, and use the existing internet to begin.
Worried about the inconvenience of learning your way around the technical end? For those cases that require trial or associated interlocutory attendance it has to be more convenient in the long run to dial in than to repeatedly trudge down to courthouses lugging boxes of files and disoriented litigants behind you.
From an access to justice perspective the elimination of the need for court professionals to physically attend reduces the cost of litigation generally. It also would also bring justice right into the heart of the numerous communities that currently don’t have Court Registries.
Dear Government, you don’t have to spend millions re-inventing the wheel. Everything you need arrived years ago! — computers with cameras and microphones, WIFI connections in every home and office, cloud document sharing, Zoom, PDF’s, email, mobile phones and texting. You have what you need. A more efficient and cost-effective interim court system is sitting right in front of you.
As a bonus, post-pandemic we can use the experiences gained to perpetuate the improved efficiencies that will inevitably be discovered, thereby reserving in-person resources for those situations that actually need it.
I repeat for emphasis, civil litigation should rely on centuries old ideas for wisdom, not the day to day operation of the justice system.