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Examining ‘irreplaceability’ of courtroom advocacy, testimony | David W.L. Wu

Wednesday, April 29, 2020 @ 11:26 AM | By David W. L. Wu


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David W. L. Wu
Many in the legal community have for years advocated for the increased use of electronic technologies in courtroom proceedings. The hesitancy of the courts in Canada to adopt and make routine use of basic technologies such as e-filings and video/teleconferencing is, frankly, baffling to many.

Now that the COVID-19 pandemic has revealed how antiquated Canadian court systems are, there have been renewed calls for the adoption of such technologies from the highest levels of the profession. Former Chief Justice Beverley McLachlin in an article on March 31 in The Lawyer’s Daily wrote that our system’s reliance “on only one mode of dispensing justice is wholly and woefully inadequate.”

In Ontario, an e-hearings task force has been created, and Chief Justice of Ontario Geoffrey Morawetz was reported to say that “[t]he world of a paper-based system is not going to exist anymore.” The president of the Trial Lawyers Association of British Columbia, John Rice, has stated that the pandemic presents “an historic opportunity to make our justice system fairer, faster and cheaper and also more accessible” and British Columbia Attorney General David Eby has echoed the sentiment calling the push for increased use of technologies in courts a “silver lining in a really tragic situation.”

Our profession now appears unanimous on the need for increased use of technology in our courts, but few have voiced opinions as to how far this use of technology should go. Indeed Chief Justice Morawetz, while stating that a paper-based system would be non-existent in a post-COVID-19 world, was also reported to express the sentiment that “courtroom advocacy will never be replaced.” I think it is likely many in our profession harbour similar sentiments. Of course minor procedural fights should be able to proceed by videoconference, but surely not a live trial on the merits or an appeal of an important decision?

The pandemic gives us an opportunity to critically examine this notion as well — is in-person courtroom advocacy or testimony really irreplaceable?

The question of the role and extent of courtroom technologies has been examined by some in the past. The inferior ability to assess credibility of witnesses, the greater perceived distance and less emotional connection to witnesses and litigants, and the erosion of the seriousness and solemnity of court proceedings are often arguments raised to limit the use of technology in court, especially in important hearings going to the merits of a case.

However, these arguments should be examined with care. For example, studies have shown that observers are no better at examining the credibility or veracity of witness testimony whether the witness presents testimony over video or in–person. Most often these studies are done with vulnerable victims like children or sexually abused victims where video testimony is more often the norm.

And while some studies have shown that observers indeed prefer to hear witnesses in-person, and (for better or worse) have greater memory of testimony that is presented live and perceive in-person witnesses more positively, other studies show inconsistent results and little bearing on how the mode of testimony affects ultimate verdicts. Further, as e-proceedings become more commonplace, it also remains to be seen whether the negative perception of non-live testimony or advocacy will be attenuated.

But ultimately, even if there is something lost in electronic proceedings compared to live ones, these losses must be balanced with the undisputable gains to access to justice of paperless and virtual court proceedings. The existing preferences for paper-based and in-person hearings have real impacts to access to justice that can be quantified in dollars to clients and taxpayers.

Modernizing our court system in the name of access to justice not only means providing more technological options for litigants, but also means critically examining our existing preferences — even ones deeply held like the sacredness of in-person courtroom advocacy and testimony.

David W. L. Wu is an associate at Arvay Finlay LLP where he practises civil litigation with a focus on public law litigation. Prior to his legal career he worked at the Brain and Attention Research Lab at University of British Columbia where he published scientific papers on cognition and behaviour. For further information, including citations of the original studies and papers this series is based on, please contact him at dwu@arvayfinlay.ca.

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