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Navigating the modern courtroom | Karen Heath

Thursday, July 23, 2020 @ 8:54 AM | By Karen Heath


Karen Heath %>
Karen Heath
Close your eyes and picture this: atop a rattling cart rolling into the room rests an overhead projector; with its angular sides, translucent glass top and bent metal arm, it is recognizable even on the periphery. No, this is not a foray into 90s classroom nostalgia. Fear not, you won’t have to overlay transparencies to demonstrate where the axis of symmetry meets the parabola (insert oft-cited adage: I’m a lawyer, not a mathematician). But, this may be an only slightly exaggerated description of the best available technology you can use to project documentary evidence and exhibits in your local courtroom.   

The pandemic has necessitated a shift in thinking on how to modernize Canadian courtrooms. In the urgency of finding a solution to get courts up and running, there is, no doubt, a short list of priority matters. Navigating CourtCall and Zoom etiquette is essential for lawyers trying to maintain their litigation practices from the so-called comfort of their living room. However, with the benefit of time and resources the list of crucial change is long.

When the dust settles, we should really begin to ask ourselves why our courtrooms were so technologically inadequate in the first place. Canada need not be on the cutting edge of courtroom technology; indeed it’s too late for that. We are dreadfully behind and working from a deficit. Instead, we need to look at the broken parts of the machine and implement piecemeal change. (An entire system reboot may overwhelm the bank and those with the lengthiest memberships in the bar.)

We do not need to reinvent the wheel. There are technology best practices that can be drawn upon from other jurisdictions. The International Criminal Court (ICC), a court in a relatively nascent state of existence (18 years young, and only in its permanent building for the last five years), abounds with technological innovation in the courtroom. One such innovation is how documentary evidence is presented in court.

What I’m about to describe may sound like a fanciful world when contrasted with our current courtrooms, which lack Internet connectivity for any non-state actor: at the ICC, the registrar, on the direction of counsel or the court, can call up any documentary evidence or exhibit electronically. It is broadcast on multiple screens around the courtroom and visible at counsel table, the dais and the witness stand. The witness stand screen has a manipulatable functionality. It is a touch screen with a capacitive stylus (a pen that does not release ink but instead, upon touching the screen, produces drawing). The witness can mark up the exhibit electronically. The same equipment and software work for a witness who produces a diagram as part of their evidence. All parties in the courtroom can see this process unfold in real time. The evidence can then be saved electronically by the registrar. It can be called up again if relevant for the same or different witness. In this process, there is no need to exchange paper ever.

The technology is relatively straightforward and user friendly, and the applications for the domestic context are manifold.

Let me speak first to appellate lawyers. Imagine reviewing a record and actually being able to see the witness’s contemporaneous interaction with the documentary evidence. The days of desperately cross-checking transcript references with the exhibits to figure out what exactly a witness was describing are over. No more reliance on inadequate descriptors from counsel or the judge — who, just trying to help, sometimes confuse the matter further in the record. We may witness the extinction of the excruciating exercise of attending in person or sending a proxy to the basement of Osgoode Hall to “borrow” the boxes of trial exhibits as if getting a book on loan from the library, and painstakingly photocopying each page to put together an Appeal Book.

For trial lawyers, the benefits are even greater. No more interrupting your cross-examination to rifle through papers on counsel table, approach the witness box, hand copies of a document to the court and opposing counsel, return to counsel table and resume questioning. Moreover, as a witness testifies about a document, everyone in the room can watch how that witness interacts with the document. You can listen to the witness’s evidence as they produce a drawing to assist in understanding their evidence.

As counsel, you can tailor your questioning even further. Judges may be able to turn their minds to the weighing exercise as the evidence is being heard. Jurors, who may use the opportunity of a witness marking up an exhibit to tune out, can now be a more attentive audience, processing the information and engaging with the evidence in real time, not days or weeks later when they’re in the jury room contemplating the facts. There may also be a time saving factor if you count all the steps that would be saved from marching around handing out and collecting paper. At the very least, it will allow for more finesse on the part of counsel.

This technology obviously supports the truth-seeking function of the court. More importantly, it makes life easier for everyone. In a complex litigation world, surely that goal is reason enough.

This is the first in a three-part series. Read part two: Navigating the modern courtroom: Embracing the change; part three: Navigating the modern courtroom: Ontario steps up

Karen Heath is an associate at Ruby Shiller Enenajor DiGiuseppe in Toronto with a practice that focuses mainly on criminal appeals. She self-identifies as technologically inept.

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