Like every other industry, the legal field has had to quickly adapt to electronic mediums of communication during COVID-19; most notably, Zoom. Lawyers were fast to implement the program to avoid adjournments in out-of-court procedures such as Examinations for Discovery and Mediations. However, the courts – which are notoriously resistant to technological change – have been less eager to implement the program into their procedures. Video conferencing is currently being used in the following legal capacities:
Out of Court Procedures:
- Examinations for Discovery: Examinations for Discovery are a routine part of civil litigation. They are an opportunity for each lawyer to ask questions of the other party to ensure that they have all evidence prior to trial. Under normal procedure, discoveries take place in court reporting offices. There is no judge present, just the lawyers for the parties and a court reporter whose job is to record what everyone is saying. Court reporting offices have been one of the first legal areas to adapt to Zoom. The court reporters participate in the Zoom meeting and record the contents of the call, effectively replacing the in-person microphone with the video audio.
- Mediations: Given the current limitations on court functioning, mediations – in which participation is, for the most part, voluntary in Ontario – have become increasingly popular, as there is little other way to resolve civil matters at this time. Accordingly, mediators have rapidly adapted to video conference programs such as Zoom. When mediations are conducted in-person, they typically start with all parties and the mediator in the same room. Opening statements are given, and then the parties move to separate “break-out” rooms. The mediator moves between these break-out rooms throughout the day, exchanging offers while maintaining confidentiality between the parties. Mediators have adapted this procedure to Zoom, having all parties start on the same conference, and then breaking into two separate video streams.
Court Procedures:
- Ontario Superior Court: On March 17, 2020, Ontario Superior Court operations were suspended until further notice, with the exception of hearings for urgent matters. Urgent criminal and family proceeds continued to be held via telephone and/or video conferencing. In early April, the operations were expanded. The services currently available depend greatly upon the region, but have included guilty pleas and sentencing hearings for in-custody cases, as well as criminal judicial pre-trials. Video conferencing mediums such as Zoom are vastly preferable to telephone conferences, particularly in the case of hearings, as the judge can more thoroughly evaluate the credibility of the parties by way of their appearance and mannerisms.
- Court of Appeal for Ontario: The Court of Appeal has, as of April 14, 2020, been conducting matters in writing and through remote appearances. They have been using a program similar to Zoom called CourtCall, which is a third-party remote appearance service being used to make both telephone and video appearances.
- Supreme Court of Canada: The Supreme Court of Canada announced on April 29, 2020 that the hearings scheduled for June 2020 will take place by video-conference. Up until that announcement, all hearings had been postponed. Details on how the video-conferencing will occur will be forthcoming.
Although the above-noted video conferencing procedures have been implemented due to COVID-19, it will be interesting to see if they continue to be utilized after this pandemic has passed. The legal landscape may be vastly changed – hopefully for the better – after it has recovered.
