Learning to Love Electronic Litigation

  • November 01, 2014
  • Mitchell Rose

Historically, litigators, and the judges who tolerate them, are agents of monumental social change, through constitutional challenges, and less noticeable change when civil law takes a bold, new direction. Despite time, risk and cost – litigation occasionally leads to progress.

Yet litigators are slow to embrace the digital age. Despite electronic courtrooms, e-discovery, on-line dispute resolution, social media and email, we remain paper-addicted reactionaries. We love lofty-looking tomes. We crave the look on clients’ faces when we display ten banker’s boxes of documents and they exclaim: “That’s all mine?!!?” Some attempt to impress colleagues by wheeling the ten boxes down courtroom hallways. They casually quip “what’s this? Oh, just a little undertakings and refusals motion. No biggie.”

Try as I may to go paperless, I encounter continual pushback. One opposing counsel chastised me at Discovery (on the record, no less) for delivering productions in electronic format. Long ago our firm joined the e-filing pilot project for court documents – which the government did not renew. I encourage lawyers to send me electronic mediation briefs, but still receive entire forests that died in vain.

Admittedly, like many, I straddle the line between paper and digital media – even in my personal life – but at a cost: I recently injured myself reading a 600 + page paper book in bed. The e-book is lighter and cheaper.

It’s time to close the book on paper. In the recent decision Bank of Montreal v. Faibish, 2014 ONSC 2178 , the Honourable Mr. Justice DM Brown refused a six-week week trial using paper and digital information. His Honour ordered a purely electronic trial, adding that “paper must vanish from this Court” lest it and its lawyers “become irrelevant museum pieces.”

Fear not. There are products to help litigators turn on, tune in and drop the paper [1]. For example, Ontario Superior Court Practice, 2015 Edition by Justice Todd Archibald, Gordon Killeen and James Morton (LesisNexis Canada) is a legal e-book to fall in love with. It contains the usual rules, legislation, forms and practice directions litigators require complete with helpful commentary and case annotations. $90 buys you both the paper and e-book. Ignoring the heavy paper volume, I downloaded the 4885 page e-book onto my iPad. I can read, bookmark, copy and email text, do key word searches and make highlights and notes. One unique feature is that the Rules of Civil Procedure and the full text of related cases are together: read the rule, tap a case and obtain it without additional charge (provided you are online). You can take it anywhere. No banker’s box required.


[1] Those younger than 45 should Google this reference to Dr. Timothy Leary.

Mitchell RoseAbout the Author

Mitchell Rose is a mediator and civil litigator at Stancer, Gossin, Rose LLP in Toronto.

Can’t surrender the past, but still wish to embrace digital media? There’s an app for you:  The Hanx Writer, a typewriter simulator created by Tom Hanks complete with clacks, dings and virtual paper. Just be sure to turn off the sound when in Court. Hitcents.com

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