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Pandemic conditions forcing change: Resistance is futile | Ken Hill

Monday, November 23, 2020 @ 11:31 AM | By Ken Hill

Ken Hill %>
Ken Hill
The practice of law and the common law itself are fundamentally conservative institutions, based as they are on precedent and tradition. As such they have been slow to embrace new technology. So, I watch with interest from the sidelines as the current pandemic restrictions place tremendous pressure on our time-honoured practices, I dare say leading to some evolutionary changes.

Concerns about new technology are natural and rational. I think for example of the fear of use of word processors when they were first introduced. In particular, solicitors were accustomed to using hard-copy forms from publishers like Dye and Durham with a few blanks to fill in and loads of boilerplate. Using the new cutting-edge contraptions, those small-print documents could be drafted and printed out by the opposing lawyer! That would force the recipient solicitor, or more likely his (it was usually a “him”  in those days) secretary or student to read every line to be sure that some legal landmine had not been included due to perfidy or incompetence. Eventually the forces of convenience and practicality caused them to overcome those concerns, paving the way for the fountain of self-publishing that is the modern law office.

In litigation, the COVID-19 restrictions have forced the courts to take steps they have long resisted. I understand that due to the pressing circumstances we can now add to the long-established terms trial by ordeal, trial by combat and trial by a jury of one’s peers, the term trial by Zoom.

It used to be received wisdom that in criminal matters, a court would lose jurisdiction if the accused or their counsel was not corporeally present in court at every step of the process. Why? I have always assumed that is was due to some concern that prisoners might lose the right to be directly involved in the process that could take away their liberty. But now technology permits accused, counsel and the judges to see and hear one another “in real time.” Think of the time, money and fossil fuel that can be saved!

Admittedly, there are obvious drawbacks to virtual trials. In person an astute judge is able to assess credibility by watching for such time-honoured indicators of falsehood as sweat on the brow of the witness or avoidance of gaze. But studies have shown that far too much faith is placed on those subjective assessments. Might the loss of that close contact force judges to look more closely at the other evidence in order to weigh the reliability of testimony?

Similarly, counsel would lose some of their ability to intimidate — for example, by shaking a document in the face of the witness while glowering with contempt. Well, they might just have to expand their preparation in order to use documentary and other evidence to impeach a less than truthful witness.

No doubt, something will be lost but, who knows what might be gained if judges and counsel are limited to the bare essentials that virtual trials and hearings can provide — i.e. the ability to see and hear each other?  

In the law office changes are also afoot. I gather that lawyers are now conferring with clients over Face Time and Zoom — meetings that until a few months ago would undoubtedly have occurred in their offices. If I were still in practice I am sure I would miss sitting across the desk from my clients, except maybe for that one guy who was in the business of pumping out septic tanks and spreading the fragrant contents on farmers’ fields. But think of the time that the clients would save, and on the other hand possibilities open up for the lawyer to work from home or, dare I say it, the beach or golf course. 

This pandemic is forcing the profession and the justice system to employ new methods of getting things done and while there will, without a doubt, be downsides, the participants will likely find that there are offsetting advantages, and my fearless prediction is that some of the new practices will be here to stay.

When this is over, we will not be going back to the “old normal,” but that may not be such a bad thing.

Ken Hill is happily retired from just about 40 years of litigation practice in Newmarket, Ont.

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