Andrea and Gary are commercial litigation partners at Ricketts Harris LLP. They are in the middle of a trial on the Toronto Commercial List, conducted entirely over Zoom. They took time out to speak with Rachel Migicovsky about how the modernization of the justice system is changing litigation, how to avoid burning out during electronic trials, and the importance of mentorship.
RM: Choose one word to describe your electronic trial experience.
RM: Tell me more. What surprised you?
GL: In some respects, it went better than I would have anticipated. It works when all the technology works and it's much better than the old days when we used to do things over phone lines. It truly is like somebody is right there. On the negative side, it's tiring. You are looking at the witness, the judge, opposing counsel, and everybody's reaction is on screen and that focus is draining. In an in-person trial, nobody sees counsel. It's a real difference that we have to pay attention to.
AS: I would be interested to hear from a witness who has testified. Witnesses can see people in a way you can't in a courtroom. You can see everyone's face straight-on. We rely on facial cues, and it can be exhausting to try to pay attention to so many at once. Overall, in so far as Zoom and video technology goes, I often say you don't get as much of the positive benefit – the uplift and energy – of being in a room together, but you do experience the negative.
RM: What were some of the key strategies that kept your trial moving smoothly?
AS: All the lawyers had to work collectively. We did a lot of work upfront to have protocols for document management in place. This made the process easier and hopefully faster. We had frequent case management conferences with the court to ensure we were meeting the court’s needs, and we worked together. You have to set all the adversarial stuff aside.
GL: It takes a degree of case management from the judge that isn't typical or has not been typical in the ordinary course. The appointment of a trial judge early on is critical. If a trial judge shows up and hasn't been involved in what's going on, that will be a disaster.