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Paperless trials advantageous for lawyers

Focus on E-Discovery: Standards for electronic evidence needed
|Written By Dale Smith
Paperless trials advantageous for lawyers
Benjamin Na says that the lawyers at his firm will typically use apps in order to review and mark up documents.

The advent of e-discovery means that the possibility of paperless trials has arrived, and they have been run in Ontario courts in some cases. Lawyers say that when it’s possible to run a paperless trial, they can be a welcome change.

“A number of us have iPads now, and I can’t tell you the last time when I’ve taken a cart home or a box home or one of those big legal briefs with the wheels,” says Benjamin Na, partner and e-discovery management leader at Gowling WLG (Canada) LLP in Toronto.

Na says that when a team of lawyers from his firm undertook a paperless trial, they acquired iPads not only for their own use but also for the judge and the witnesses.

“You can have a joint brief of documents printed up in binders or you can all have it in an iPad,” says Na. “It’s just so much easier to retrieve a document. Not only that but preparing these binders for trial is a difficult job. Once you put it in a binder and you need to make changes, it’s hard to reshuffle.”

Ontario Superior Court Justice Giovanna Toscano Roccamo has presided over two paperless trials to date, and she says that it’s an issue of document control and organization, and any kind of organization should happen long before the trial begins.

“If someone is considering doing a paperless trial, it is very helpful to have agreement on the other side so that the documents can all go in together, rather than have one side with documents and one side with electronic documents,” says Toscano Roccamo.

On her first paperless trial, everyone including her and the jury was equipped with an iPad, which she said was brilliant.

“I had elderly people who had never handled a computer,” says Toscano Roccamo. “We did a tutorial, we helped the other counsel learn how to use it and everybody got with the program.”

Stuart Rudner, founder of Rudner Law in Toronto, says his office operates as much as possible as a paperless office.

“If you think about the traditional approach to litigation, whether it’s the production of documents, discovery or trial, everything is fairly standardized,” says Rudner.

“When it comes to doing things electronically, there are a lot of variables to deal with, and the only way to make it work properly is to co-ordinate with the other side from the very early stages.”

Rudner says variables can include which software everyone intends to use.

Alternately, everyone could produce documents in PDF format.

Another variable is whether there is an agreement around exhibits, which can be problematic if the document package risks a jury seeing those items that have not yet been proven as exhibits.

“We will typically write to the other side and propose that all documents be screened electronically, and assuming they’re willing, we can agree on what format we’re going to use,” says Rudner. “We can start from there, and then you can get into the discussion of how we’re going to do discovery.”

Rudner says that the discovery process can be wired so that everyone has the same information on their own screens, and that becomes a similar discussion prior to trial. There, part of the discussion is whether the courtroom is wired for electronic documents or whether they have to put together a system. Most of this can be resolved at a pre-trial conference.

“You can’t just show up on the first day of trial and say you want to do it electronically and then figure it out that morning,” says Rudner.

He agrees that when an electronic courtroom isn’t available, providing iPads is a good practice, but again, it would need to be discussed beforehand.

Rudner says that meeting programs can also be useful, where if everyone is logged in to the same meeting, documents can be shared that way, something that he has seen done in discovery, which worked well.

One challenge Rudner points out is that sometimes the technology doesn’t work, which is why it’s necessary to have a backup plan.

Na says that, typically, the lawyers in his firm will use apps in order to review and mark up documents.

He adds that there is an app where lawyers can write, type, highlight and erase so that any notes taken are electronically stored and easily searchable.

“You can put exhibits, you can put your transcripts on there and it’s a great way of not only reviewing your transcripts but issue-coding, creating mini-reports — it’s a great app,” says Na.

Crystal O’Donnell, CEO and senior counsel with Heuristica Discovery Counsel in Toronto, says one of the issues with e-discovery in Canada is that there’s not very much available in the market compared with the United States.

“Until recently, there has been no hosted solution for electronic hearing software in Canada,” she says. O’Donnell says that some issue with previously available software is that it’s kind of impossible to mark or enter exhibits on the fly, meaning that lawyers would have to wait until the end of the day to update the files. 

The software her firm uses allows on-the-fly activity.

“The concern is that if you put all of your documents into a database that all parties and the adjudicator have access to, the adjudicator is seeing documents that haven’t actually been entered as exhibits,” says O’Donnell.

“One of the advantages of using software intended for a hearing is that when the adjudicator gets a log-in, they can only see exhibits, and you can actually tender exhibits on the fly. It is updated in real time.”

O’Donnell says she is a strong believer in the need for professional standards for electronic evidence.

Na says the biggest limitation with paperless trials is that lawyers can only go as far as the court is willing to go.

“You need to have a judge who actually wants to do a paperless trial, and you want to make sure that the judges are comfortable with the technology,” says Na.

“There’s no point in having a judge who is frustrated. But there are some judges who want a paperless trial.”

Lawyers add that the courts themselves need some investment in technology, and some will remark that they are still operating with fax machines rather than electronically.

Currently, the Court Services Branch of the Ministry of the Attorney General is rolling out the ability to electronically file civil actions across the province, with the hope that, by 2018, parties will be able to file statements of defence, filings and proof of service.

Toscano Roccamo adds that it’s highly effective to be able to present dry and uninteresting evidence such as read-ins of admissions or evidence from transcripts, where there can be highlighting, or documents that include maps that can zoom in on things such as locations of accidents.

“If the way to present evidence is through a paperless courtroom, it may be more proportionate to the costs in the case in the end run as well,” says Toscano Roccamo.

  • Paperless Trials - Don't bet on it

    James Ball
    eDiscovery has nothing to do a paperless trial. The goal of eDiscovery in simple terms is to apply classification and natural language algorithms to identify documents within a large machine-readable corpus that contextually and statistically are near neighbours and depending on the search parameters are likely relevant. If a lawyer's notion of eDiscovery is that the parties agree to produce their documents in PDF format, that is not what Sedona is all about. Ideally, eDiscovery turns a massive document case into a small document case. Most cases are small document cases from inception. The judges are busy people. If they did not arrive to the bench computer literate, they are likely not anxious to become computer literate in (the absence of) their spare time. In garden variety litigation (and therefore not on the Commercial List or a known long trial), you have no idea of who will be assigned to try the case until, perhaps, the Thursday or Friday before trial. You cannot be certain that your case will be reached on the week's running list. You better have your witness, bench mark-up, exhibit and counsel copies ready to go when you appear before the trial judge.

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