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Navigating the modern courtroom: Embracing the change | Karen Heath

Wednesday, August 12, 2020 @ 8:27 AM | By Karen Heath

Karen Heath %>
Karen Heath
The incessant tap-tapping of an enthusiastic typist is part of the steady thrum of courtroom din that you become accustomed to during a lengthy matter. The feverish note taking of a second chair grasping on to each uttered word from the witness is often punctuated by the distinctive tap of the enter key. A new line, a break in thought, nary a breath taken by the witness; and the melody resumes. For opposing counsel (and maybe even co-counsel) it is likely a nuisance. Depending on the real estate of the courtroom, it may border on intrusive.

Unfortunately, in our current technophobic court system, this noise may be a necessary evil — with counsel left to create their own unofficial transcripts as the best summary of the evidence available during a trial.

A better solution is out there. It is one that requires a moderate investment in a transcription machine and related software and one that, most importantly, leads to a more effectual truth-seeking process. It is yet another technological innovation used at the International Criminal Court (ICC) that ought to be implemented in Canadian courts. It is: Transcend. On-point branding if you ask me.

At the ICC, every word spoken on the record is transcribed in real time. The technology is breathtakingly simple: a machine transcribes the sound and court reporters teach the AI built into the machine to ensure the software learns when it makes mistakes, better refining the transcription process as it goes. Alas, I am cognizant that propagating this technology is one step closer to a robot uprising. But I am happy to share that court reporters are still necessary actors and help refine and edit the content to produce official transcripts. Also, a robot could never replace a litigator, right? Each courtroom actor, excluding the witness, has a screen where the live transcript can be followed. The prosecution can flag what needs to be redacted before public consumption; counsel can flag portions of testimony to follow up on; and there is searchability function.

There are many benefits to adopting this technology in our domestic courtrooms.

The obvious advantage is being able to actually listen to a witness and absorb what they say as they say it. Contemporaneous analysis and synthesis of information revealed during testimony ought to be the primary task of counsel. Without the need to capture precise notes, a second chair could contribute more meaningful analysis instead of a speedy WPM count. The technology is all the more beneficial for a lawyer operating solo who may not have the same capacity to take verbatim notes.

What’s more, this technology could signal the end of the dreaded audio playback of the courtroom recording. As a frequent second chair, my best attempt at verbatim notes of a witness’s testimony is often called upon during this process. In the moment, feeling quite exposed on the public record, there is a second of panic — fleeting confidence that I captured the language exactly as spoken. Pinpointing the moment in evidence, with the assistance of the court reporter, and rewinding and fast-forwarding to find the correct snippet of audio, can take some time. It serves to interrupt the flow of a witness’s evidence. I think we can all agree that it is also cringeworthy to listen to your own recorded voice.  

There is also a great advantage to the administration of justice, particularly in the appellate context. The current turnaround time on transcripts for a lengthy criminal trial can be months. I imagine it is not dissimilar in the civil context. Too often counsel are in status court explaining the delay to the presiding judge and requesting more time to perfect an appeal. Meanwhile, the client sits in custody, the public is in limbo, and the complainant’s family waits in anguish. With the possibility of transcripts being produced in real time, with only an editing function required before becoming “official,” appeals could move at a much quicker pace.

Admittedly, I am the guilty party described at the outset. It is I: the emphatic and enthusiastic typist. Advance and retroactive apologies extended to all opposing and co-counsel. If just to rid the courtroom of the irritant cacophony of loud typists like me, the technological investment seems worth it. Also, frankly, if Siri can inadvertently, but with mystifying exactitude, capture and transcribe my personal conversations, surely we can employ a similar technology in a courtroom setting that has actual benefits to the administration of justice.

This is the second of a three-part series. Read part one: Navigating the modern courtroom; 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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