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Virtual vs. in-person trials: Benefits, negatives, considerations

Thursday, February 25, 2021 @ 8:35 AM | By Margot Mary Davis and Jennifer Lynch

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Margot Mary Davis
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Jennifer Lynch
Law has long been criticized as an industry that has been resistant to change. However, the COVID-19 pandemic has forced the legal profession to implement certain changes. The Ontario Court of Justice stated that many court proceedings are now not conducted in person but to be conducted via audioconference or videoconference.

Any change to the status quo will have its supporters and detractors. Below, we consider some arguments advanced in favour of virtual trials, concerns pertaining to virtual trials and ways to improve virtual trials, since they seem to be the “new normal.”

Improved time, cost efficiency  

A major benefit of virtual trials is the time and money saved. Virtual trials can be conducted anywhere in the world as long as there is Internet access. Jennifer Lynch, a co-author of this article and frequently called upon expert witness, notes that virtual hearings save costs and time for the clients. The clients do not have to consider travelling costs or pay for the production of hard copies of materials. Reduced travelling times and no need for hard copies of materials are not the only way virtual trials save time and money. Judge Tanya Garrison, a judge for the Harris County (Texas) Civil Court, says if a trial occurs virtually the bill may “reflect 15 minutes and not 3 hours.” Michael Lesage, an Ontario litigator in complex cases, echoes these sentiments. Lesage believes that virtual trials are generally a superior option to in-person trials, and save money and time for both lawyers and clients.

Trial’s fairness, integrity

One oft-cited criticism of virtual trials is that it presents concerns regarding fairness. The first way these concerns come into play is access to broadband. Many rural areas in Canada do not have access to broadband. Slightly less than half of rural areas have access to unlimited broadband at 50/10 megabits per second compared to national rate of 87.4 per cent. Some scholars have noted that work from home orders have made the “digital divide” more apparent in Canada. Access to a trial should not be dependent upon their address.

Other concerns pertain to the fairness and integrity of the trial itself. A 2010 study noted that people who had video bail hearings were more likely to have higher bail amounts than people who had in-person hearings. Virtual hearings mean that judges or arbitrators cannot see body language; Janet Walker, an arbitrator, worries that the “loss of in-person observation” will impair a tribunal’s ability to assess credibility and there is always the possibility that a witness is being coached. Lynch also believes that it is much harder to “read” minds when body language is not visible.

Fairness concerns also exist after the trial has ended. Carlos Martinez, a public defender in Florida, notes that someone’s criminal record may be expunged but videos, from a virtual trial, may still exist. This could impact a person when looking for employment, or when trying to secure a loan. While in-person trials are recorded, it would be much harder for the general public to access such a recording.

Zoom questions about security, privacy

Many courts, like the Ontario Court of Justice, conduct trials on Zoom. However, technology and private experts have long expressed concerns pertaining to Zoom’s privacy and security settings. In 2019, hackers compromised Zoom’s webcam and people were able to attend Zoom meetings that they were not invited to. While Canada subscribes to the “open court principle,” public access to a hearing can be restricted in some circumstances. A hacker might be able to watch a trial that has been closed to the public. Sensitive or confidential information would no longer be confidential.

Improved or worsened access to trials?

Opinions are divided on virtual hearings’ impact on public access. Some argue that they increase access. One particular example is a virtual hearing in Topeka that 3,500 people watched. Many of the viewers were outside of Topeka and normally would not have been able to attend an in-person hearing. However, experiences have not been uniformly positive. In April 2020, only two Toronto courthouses allowed journalists to phone into virtual trials. Similar stories have been reported across North America.

How to improve virtual trials

Regardless of one’s opinion, virtual trials are the new normal. Therefore, the focus should be on improving them.

Instead of using Zoom, courts should use other platforms like CourtCall. Professional associations could provide seminars on how to assess credibility without relying on body language. Courts should look to best practices of ensuring public access to virtual trials. For example, the Rhode Island Judiciary set up a YouTube page to livestream trials. Broadband accessibility is increasingly being addressed.

Let’s make sure the new normal is generally positive and works for all.

Margot Mary Davis is a 2018 Ontario call to the bar. She is interested in policy issues surrounding law like combating counterfeit goods and developing sui generis policies for orphan drugs. She is also a published author. Jennifer Lynch is an expert witness and forensic accountant at Lynch & Associates, Forensic AccountantsShe practises in the areas of personal injury and wrongful death claims, matrimonial disputes, partnership disputes and fraud examination. She holds Chartered Professional Accountant, Certified Management Accountant and Certified Fraud Examiner designations. You can reach her on LinkedIn.
Photo credit / Mary Ne

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