Thanks to litigators Anne Posno (Lenzcner Slaght LLP) , David Steinberg (Steinberg Barristers) and Nadia Campion (Lax O'Sullivan Lisus Gottlieb LLP) for their time and insightful discussion.
One year since the pandemic hit and with a new Stay-at-Home Order in place, litigation continues to take place virtually, except in very few cases. This accomplished group of panelists provide their impressions on how virtual litigation is going and also look ahead to the future to consider which reforms (if any) should remain in place when the "new normal" arrives.
One year out, what has excited you about the transition to virtual litigation?
The things that I have enjoyed about it is it's forced me to be more electronic. It's also facilitated ease of accessing records when I'm dealing with clients and whatnot as well because it's, again, required me to learn the technology a little bit better. I used to have a little pile of files beside my desk that would be active files, and I would have 10 to 20 file folders sometimes with motion records sometimes piling over, and I don't have that anymore. I have it now on my desktop, but nobody's tripping over it anymore.
I'm getting ready to be called the Grinch. The short answer is that virtually nothing excites me about virtual litigation. This was, for better and worse, foisted on us by external circumstance, and I guess like all external circumstances, it can create opportunity for learning and growth.
But to Anne's point, I think that this is an impetus to learn about how to use new technology. I think there's a difference between using technology to better organize oneself versus using technology in our relation to other people. And for me, that's a meaningful and significant distinction.
Where does the line end, what are some examples of aspects of virtual litigation that are, or are not, working well?
I gave that a lot of thought. I came up with the following paradigm, I think we have “transactional” on the one end of the spectrum and “relational” on the other end of the spectrum. In other words, you ask yourself this question, "Is the task at hand more of a transactional task or more of a relational task?". Transactional is an exchange. You have information that someone needs, or they have information that you need. The obvious example is scheduling a hearing date. That's a pure transactional event, as far as I'm concerned in the litigation world, for which a virtual mode of communication is appropriate.
I define “relational” to be something where in particular, we must listen, learn, and create something. If you must listen to a witness, answer questions, or if the judge must listen to the testimony or argument and ultimately create or do justice between the parties. We're storytellers. We're advocates. We're sharing the stories of real human beings, and the literature, the psychological literature, the scientific literature seems to show that the majority of storytelling, and conversely, empathic listening, which is the hallmark of good judging, and I would argue, also good advocacy, for the most part, is not about the information. It's about the body language. It's about the emotion. It's about the energy, if you will. You can't get that virtually.
If we want to do real justice, not virtual justice, then we owe it to our clients and we owe it to the public we serve to ensure that all “relational” interactions remain in person. And to Simon's original question, we'll draw the line, like everything in our business, we need to use good judgment.
David’s paradigm is an interesting way to think about what is okay for the electronic virtual world versus what should continue to be conducted in person. I would say that when you look at examinations and hearings, that there's even a spectrum inside the extremes of the spectrum. In my view, I think it’s more nuanced than just having scheduling on one end and then everything else that requires a relational interaction occurring on the other side of the spectrum.
I agree with David. There is absolutely a spectrum, and the way he has conceived it makes a lot of sense. But I would also say that there's probably a lot more stops along that spectrum.
I think with David's paradigm, the transactional stuff is a no-brainer for everyone. But I just want to point out two areas which I think are interesting and distinct, appeals and mediations.
Appeals, because of the intellectuality and the type of arguments that are made in appeals, they seem to lend themselves to be argued virtually.
Whereas mediations, which are way more convenient virtually, because you always have so many people you're trying to corral together for mediation, but the necessary human dynamic and connection between the mediator and the parties doesn't occur virtually.
I agree with what Anne is saying about the mediations. To tell you the truth, I’ve had a couple of mediations and none of them have been successful. It makes me wonder whether it's because there is a lack of a bond or relationship that is not being developed with the mediator.
How can virtual litigation improve and what new or essential skill sets are lawyers going to need going forward?
This may be a bit controversial. One of the things that we, as a profession, struggle with, are the traditional type of male barrister who walks in and immediately gets respect from the court, and has prior relationships with people and have been around a long time. There's a lot of swanning around that more senior counsel enjoy, and often have worked their way through the ranks, and are entitled to some of that, for sure. But if that characteristic has an influence on the court for the purpose of the case, that's not such a good thing. And I think one of the things that virtual litigation does is it takes away some of the strength of that characteristic. But what I think happens with the virtual world that people need to recognize, is that there is a greater focus on legal substance. You must rely upon better knowledge of the record and to fine tune what your arguments are going to be, as opposed to standing there and waving your arms in the air.
I think because of that, it opens the door to a lot of more junior people, a lot of people of diverse backgrounds, and a lot of people who have accessibility issues who otherwise would have a more difficult time of establishing a strong presence in court because of the traditions of our courtrooms.
Will junior lawyers suffer from potentially missing out on in person advocacy?
Advocacy has changed over the years. The long and the short of it is that advocacy has evolved in the same way that it's always evolving. Yes, it's different because people aren't up on their feet and doing it in the more traditional way, but they are developing a different type of skill that I think will lend itself to whatever the next evolution will be. So I don't see it as something that impairs junior lawyer’s future ability. It's just a different type of skill that junior lawyers are building on now that they would not have been building on.
Well just if I can add to what Anne is saying, certainly what's been reported to me by some of our more junior lawyers is that they feel a lot less intimidated on the screen. And I would say that in fact virtual examinations at the early stages of your career to build that initial confidence is a real positive and create a net positive upon return to the in-person world. And I think that's also reflected in what Anne's comment is, we're leveling the playing field a little bit.
I think both Nadia's observations and Anne's observations are very insightful, and I have, for the longest time maintained that our profession seems to, in practice, no matter what the platitudes say, place a premium less on substance than it should. I would take a slightly different angle and say, our advocacy matters, and there's a decorum and a reverence for the institution and the process, which at some level is almost sacred.
People are entrusting us with their lives, whether not necessarily their physical lives in commercial litigation, but their livelihoods, their fundamental relationships, their assets, and so on. That's meant to engender respect. What COVID is teaching us as human beings apart from being lawyers is a greater humility and appreciation for the world in which we live; the physical world, the natural world, the societal world, and the inequalities that are baked into it.
I hope that what emerges from this process is that people become more thoughtful and sensitive about that, but at the end of the day, we must learn to deal with our different personalities, and we have to learn to deal with legitimate concerns. I think we all know that experience teaches us. So, we shouldn't shy away from these in-person hearings for experiences because there are arrogant people or intimidating factors. I think we should have more honest conversations.
What is one tip you can offer for a virtual practice?
I think from a very practical perspective; talk slower. People are going at a million miles an hour, and it's harder for the audience to follow in part because Zoom can be a lot more exhausting than your in-person interactions. If you're going too fast, the message gets lost.
I think from a sociological perspective, and this is something that I'm trying to implement myself, is people must be respectful of boundaries. Simply because we are in the virtual world, does not mean that this must turn into a seven-day-a-week, twenty-four-hour practice.
Very practically you need more than one screen. So two screens. Along with that, it's always more fun to do a case with another person, and it's better for the client because you establish them. You get more than one point of view, which is helpful, but when it comes to doing discoveries or a presentation, it's helpful to tag team with someone when you are doing the argument or whatever it is, somebody else can manage the documents and, and vice versa. So two screens, two people.
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