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Marie-Andrée Vermette

Ontario bar task force offers tools, tips, advice for making ‘huge adjustment’ to remote hearings

Monday, June 01, 2020 @ 12:41 PM | By Cristin Schmitz

No plaid. Wear clothes below the waist. Nod, instead of bowing, when the judge enters.

These basic pointers are among dozens of helpful tips, and easy-to-follow technical advice, offered by Best Practices for Remote Hearings — a detailed and useful 42-page practical guide that is designed to help lawyers successfully adjust to the new normal of virtual court appearances during the COVID-19 pandemic.

The publication, created in co-operation with the Ontario Superior Court of Justice, covers the gamut of topics related to remote hearings, including: recommended hardware and software and preparing your system for a remote hearing; pre-hearing preparation, as well as co-operation and collaboration with opposing parties; test runs; issues to discuss ahead of time with the judge; preparing clients, witnesses, and documents; courtroom etiquette and civility; on-screen tips for counsel, parties and witnesses; and counsel’s responsibilities in cases involving self-represented litigants.

The guide was collaboratively developed by Ontario’s forward-thinking E-Hearings Task Force and could well set the standard in that province as the best practices it recommends have the seal of approval from all task force members, i.e. The Advocates’ Society, the Ontario Bar Association, the Federation of Ontario Law Associations and the Ontario Trial Lawyers Association

Marie-Andrée Vermette, WeirFoulds LLP

“We hope that the best practices will provide guidance to anyone who is considering preparing for, and participating, in a remote hearing, so that lawyers and parties can gain some comfort with the technology ahead of time, as well as learn how to make the adjudicator’s experience easier,” explained Marie-Andrée Vermette of Toronto’s WeirFoulds LLP, who co-chairs the task force with fellow commercial litigator, Kathryn Manning of Toronto’s DMG Advocates LLP.

Vermette told The Lawyer’s Daily the task force is answering lawyers’ pleas for information and guidance on how to use the technology for remote hearings, as well as advice on how they can adapt their advocacy to suit a virtual venue.

“Tips on how to help the court follow along, what types of tech tools they need, and how they can modify the documents they use in the remote hearing room seem to be most welcome by the bar right now,” Vermette explained. “We hope the checklists will become something that counsel use in every file, and that after they have done some remote hearings, they will continue to pull reminders from the best practices as a whole as they take on more of them.”

Manning said that for many lawyers, adapting the way they usually practise via paper, will be a struggle. “We are, to a large extent, creatures of habit,” she told The Lawyer’s Daily. “We have our binders, our way we review and tab documents, [but] that has to change in the remote world, which makes some lawyers uncomfortable. We also love being on our feet in court. And sitting at a desk, staring at a computer making submissions instead is a huge adjustment.”

Kathryn Manning, DMG Advocates LLP

Lawyers have concerns about the move to remote hearings, Manning acknowledged. “I think they are worried that this ‘new normal’ will impact how they represent their clients and whether access to justice is impeded by the courts not being physically open.”

She pointed out that for members of the public, accessing justice frequently means going to a courthouse to get information about how to navigate the complex system. “That is a worry for lawyers who are concerned about access to justice issues,” Manning explained. “Some are also worried about permanent changes that could be made during this period based on the current situation, but without necessarily thinking about [the changes’] long-term impact, and about the point of view of the litigants themselves, for whom having their day in court is important and makes them feel they have been heard.”

The best practices guide will be updated periodically, as needed. It includes checklists for: matters to consider reviewing with the judge in advance of the hearing; counsel preparation in advance of meeting with the adjudicator; and preparation of one’s system for a remote hearing.

 A small sample of the extensive advice:
  • Where appropriate, all parties should co-operate in the timely preparation of an electronic joint brief of documents to facilitate the management of documentary evidence by the court, witnesses, parties and counsel.
  • The recommended format for documents used at the hearing is a searchable PDF with electronic bookmarks.
  • The background visible on-screen should be appropriate for a court hearing, i.e. a neutral solid wall free from distracting personal items, or a neutral virtual background.
  • Participants should not move away from the screen, or turn off their cameras, during the hearing without the judge’s permission.
  • Participants should be mindful of their facial expressions even when they are not speaking as the camera is always on them, and should keep their mics muted unless addressing the judge or otherwise requested to speak.
  • Ideally position a lamp, or sit facing a window, where light is directly on your face.
  • If not directed to robe, wear neutral, muted, or solid-coloured business clothing, and avoid plaids, stripes, polka dots, very bright colours and the colours red or white.
  • Wear appropriate clothing from the waist down in the event you have to suddenly stand up, or your video is not off when you take a break or convene for the day.
  • If possible, use a headset with a microphone. Speak directly into any microphone and avoid moving your head from side to side while talking or your voice will fade in and out.
  • Avoid moving around or making sudden gestures as they can make the video choppy.
  • Set up an independent way to communicate with those involved (including co-counsel and clients) so you can confer easily throughout the hearing, and set ground rules so you are not distracted by unnecessary messages.
  • Work with the documents electronically as much as you can and for case authorities refer to the relevant footnote in your factum, which should include a hyperlink to the case, if available.

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