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Advice on winning first virtual appeal: Exceptional electronic documents

Monday, April 20, 2020 @ 2:22 PM | By Jacob R.W. Damstra


Jacob R.W. Damstra %>
Jacob R.W. Damstra
Hand-in-hand with the significance of writing persuasive facta, preparing and filing exceptional electronic documents is key to effective e-hearing advocacy. As many among us, both bench and bar, work through the transition to a more virtual delivery of justice there will no doubt be learning curves on all sides.

We can simplify and facilitate this learning, flattening the curve long after we’ve collectively done our part to flatten the COVID-19 curve, by committing to delivering easy to navigate, user-friendly electronic documents. I’m no fan of trying to read a factum that looks like its been photocopied a dozen times, crumpled and run sideways through a fax machine, then finally “scanned” by an iPhone, compiled as jpegs and e-mailed in multiple parts. I’m confident that your motion judge or appeal panel wouldn’t be happy about it either.

A few thoughts on things we can implement, if you haven’t already, to improve the workability of electronic filings:

  • Ensuring all e-documents filed are in PDF OCR searchable format with navigable tables of contents/indexes;

  • Hyperlinking case references in facta to cases available online and/or cross-linking to an electronic book of authorities;

  • Cross-linking references in facta to the motion record, appeal book, transcripts or respondent’s compendium;

  • Annotating electronic books of authorities to include a navigable table of contents with links directly to the paragraph references you intend to take the court or tribunal;

  • Submitting electronic documents together in a single e-mail in a zip file, a secure file sharing service or compiled on a USB;

  • To the extent possible, co-ordinating and co-operating with opposing counsel to permit cross-referencing between plaintiff/defendant, appellant/respondent, moving party/responding party materials.

These are just some examples of readily applicable technologies that will make everything easier for all stakeholders in the justice system — lawyers, judges and witnesses alike. While these tools aren’t new, they hardly seem to be in wide use beyond a few specific forums. More widespread application of these tools now will not only facilitate a smoother transition to e-hearings, but also militate against an immediate reversion to the paper-based norm when social distancing measures are no longer mandatory.

Setting up for success

Once the written arguments are drafted and the electronic documents are filed, it’s time for the e-hearing. Whether by telephone or video conference, through CourtCall, Skype, Zoom, Webex or any other platform, the key to success in e-advocacy — as with all advocacy — is preparation. Just as every advocate will have their own process and ritual to prepare for an in-person hearing, the manner in which one prepares for an e-hearing will be necessarily individualized. Find what works for you, whatever makes you comfortable and confident and focus on the substance of the argument, not the form. Still, a few thoughts worth considering as you do prepare:

  • Check your phone/internet/browser capabilities. Make sure you’re actually able to connect to the e-hearing service. To the extent possible, test the platform before e-hearing. Familiarize yourself with the functionality and tools at your disposal within the various systems.

  • Make sure your phone and computer are fully charged and plugged into a power source. Seems simple, but we’ve all been there; asking strangers for a charger or desperately looking for an outlet before our phone or computer dies during an important call or drafting session.

  • Take time to set up your microphone and camera so others in the e-hearing will hear what you need them to hear and see what you want them to see. Test your microphone and computer audio. If you’re preparing for a video e-hearing, make sure the camera is framed on your face, not your forehead or stomach or tilted down at your desk or up to the roof.

  • Try getting on your feet. As we are able, we advocate primarily on our feet. We stand at a podium or lectern to make our submissions in court, so why not try to set up the same for your e-hearing. Purchase a reading stand or makeshift a podium that you can stand comfortably at and work from during the hearing and making your submissions.

  • If working remotely with co-counsel, set up an e-mail or SMS chat to communicate confidentially back and forth as the hearing is going on.

  • Close the door! We all love our pets and kids, and the past few weeks have generated many adorable stories about dogs joining virtual meetings, cats taking over the keyboard and kids adding their commentary to calls and dictations. But take the e-hearing seriously. Shut the door and lock it. Ask your family to go for a walk. Keep the pets outside. Do what you need to do but stay focused.

By following these steps and completing your own preparation and pre-hearing rituals, you will be set up for success at the e-hearing. And remember, mute your microphone when you’re not speaking — whether during a telephone conference or video conference — to avoid disrupting the hearing with vociferous typing, cute kids in the background or comments under your breath that the microphone wasn’t supposed to pick up!

Be patient with the process

A final piece of advice: be patient with the process. As with all new systems, they take time to learn and familiarize oneself with. This will be true for all of us on both sides of the phone/screen. The connection may “lag” — as the kids say — and audio quality may cut in and out.

Loading the right documents on everyone’s screen may take some trial and error (though we’ve been working with paper briefs for hundreds of years and every hearing I’ve been at still requires trial and error to ensure that the court and counsel (and, if applicable, witnesses) are holding the same brief, open to the same tab, looking at the right page or paragraph). Advocates may not be as quick to notice when the adjudicator has a question or opposing counsel has an objection. Judges may speak over lawyers and vice versa as everyone settles into the nuances of this new technology.

These challenges are bound to arise. When they do, it doesn’t mean the system is unworkable and we need to get back to a paper-dependent, bricks-and-mortar-only delivery of court services as soon as public health authorities clear us to gather in groups larger than five. It means that we need to come together, to work together, bench and bar, to smooth out the kinks and get back to work advocating for our clients and delivering justice to our communities.

This is part two of a two-part series. Part one: Welcoming e-advocacy: Advice on winning your first virtual appeal.

Jacob R.W. Damstra is an associate at Lerners LLP in London. He maintains a dynamic dispute resolution, litigation and appellate advocacy practice involving commercial and insurance disputes, public and administrative law, health law, and environmental, municipal and regulatory matters.

Photo credit / priyanka gupta ISTOCKPHOTO.COM

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