Please enjoy this blog post authored by Rose Singh, eDiscovery Project Manager, McCarthy Tetrault LLP.
Virtual hearings are happening in courtrooms across the world as a result of the pandemic. Virtual hearings have offered a number of benefits; however, some concerns still remain.
Benefit of Increased Collaboration
Virtual hearings require professionalism, cooperation, communication and collaboration between parties, both before and during the hearing(s). Effective collaboration and communication provide for an efficient and cost-effective hearing.
Increased collaboration between lawyers, eDiscovery professionals and other staff will ensure hearings go smoothly. Examples of some of the bigger things that need to be prepared are ensuring that the exhibits are organized and online. Some of the smaller but still important details include making sure that the arguments, books of authorities or books of documents being provided to the Courts are properly hyperlinked and tabbed. If you are not organized, your hearing can go sideways really quickly. The Judge cannot follow you in your submission and you will be spending time scrolling through materials and wasting the Court’s time. Fortunately, collaboration between teams on the technology side has increased with virtual hearings.
Collaboration with opposing counsel has also increased. In some cases, you can agree to exchange documents in advance of a discovery to avoid technological difficulties. Use of electronic documents has increased efficiency and response times from all parties.
Benefits of Public Access to Virtual Hearings and Enhanced Access to Justice
In many ways, virtual hearings enhance access to justice by allowing parties outside of major cities to participate and view their hearings online. Courts and tribunals that were primarily paper heavy have now shifted to electronic documents which has led to cost savings for courts, tribunals, law firms and clients.
Virtual hearings are also much more accessible to members of the public and the media. If hearings are online, the burden of travelling to courthouses, and concerns about the physical accessibility of the space do not exist. Everyone will be able to access hearings from the comfort of their homes. Further, if online hearings are recorded, there is the possibility that the public can access court proceedings at their convenience. This increases the public’s ability to participate in democracy.
Concerns Regarding Technical Issues Arising from Virtual Hearings
Although there are many benefits to virtual hearings to the members of the public and enhancing access to justice, a lack of access to the Internet would present as a barrier to justice when relying heavily on virtual hearings. Access in this way assumes everyone has access to the Internet, that may not be the case in some remote areas of the country or for those in the community that cannot afford the costs associated with videoconferencing. While virtual hearings online improve access to justice in some ways, we do have to think about those for whom internet access is still not reliable, accessible or available.
Further, it is important to ensure the virtual platform(s) you are using can accommodate the number of people wanting to attend the virtual hearing.
A lot more technical details need to be thought through, especially the logistical challenges, such as making sure exhibits are accessible and everyone can see them. However, it is also essential to ensure that other exhibits that are confidential are not accessible to everyone online. Some court records include significant personal information. If virtual hearings are recorded and publicly available, witness testimony has the potential to be misused in new ways. However, it is necessary both to identify privacy invasions as a potential concern in the context of virtual hearings, and to understand the specific nature of these risks in order to put optimal protections in place.
Importance of Checklists and Best Practices
There are several online checklists available through the different government and advocacy websites. Preparing a checklist for your hearing before you start your preparations will assist with the hearing running smoothly and ensuring the technology is in place. Some useful websites are as follows:
Virtual hearings grant the public better access to the operations of the courts. In my opinion, this is a good thing. It also opens the door to more collaboration between the parties and the courthouse. Public access and collaboration, however, are not the only variables at play. There are important concerns around the privacy interests of participants in hearings. As we move forward, we need to look at checklists and follow best practices for virtual hearings, and ensure collaboration occurs between parties and internal teams.