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Welcoming the Age of E-Advocacy: Advice on Winning your First Virtual Appeal

11 minute read

The world of advocacy is changing. With the advent of social distancing how we deliver legal services, and especially how we assist clients navigating the justice system in our courts, has changed abruptly and significantly. Some of these changes were already afoot, albeit at a glacial pace, but the outbreak of COVID-19 has forced the urgent adoption (if not yet a full embrace) of the stark reality that we need to confront and take seriously the opportunity that technology affords to improve access to justice and provide more efficient delivery of legal services and advocacy.

So what does this mean for litigators and appellate advocates? Gone are the days, or at least they seem to be on their way out, where insistence upon personal attendance at our courts to file mounds of paper and in-person appearances in physical courtroom spaces are the best (or even the only) way to litigate and advocate for our clients’ interests.

In Ontario, members of the legal profession, including The Advocate’s Society (TAS), the Ontario Bar Association (OBA), the Federation of Ontario Law Associations (FOLA), and the Ontario Trial Lawyers Association (OTLA), have established an E-Hearings Task Force. The Task Force has been struck to address “the pressing need throughout Ontario for greater access to justice by means of electronic hearings.” The Task Force is intended to serve as a liaison between the Ontario bench and bar “in respect of practice directions and other regulatory changes required to implement fair and efficient electronic hearings (E-Hearings) including motions, applications, pre-trial conferences, trials, and appeals, by means of teleconference and video conference and other electronic platforms.” The Task Force is also going to develop best practices for the preparation and conduct of e-hearings, and identify workable platforms for the continued expansion of E-Hearings in Ontario.

Similarly, in an article published by The Lawyer’s Daily on March 31, 2020, our former Chief Justice of Canada Beverly McLachlin made an impassioned call to “review our processes and requirements, with a meaningful and calculated assessment of what is redundant, no longer necessary in the age of technology, not essential to the functioning of justice, or anachronistic.” She implored that our courts “must be sufficiently funded to function in a modern fashion – no longer reliant on paper, a bricks-and-mortar-only approach to the courthouse and a mode of interaction that requires people to be physically in the same space.”

Worry not, however, whether there is still a place for oral advocacy in our justice system as it transitions into the virtual age – we strongly believe that there is. What is clear, though, is that we must be prepared to deliver our submissions and oral argument in new, innovative, and modern methods. With that in mind, here are some thoughts for setting yourself up for success at your first (or fifth, or fiftieth) e-hearing, whether at an appellate court, a trial or motion, or a tribunal hearing.

Writing Winning Arguments

Now, as always but perhaps more than ever, the importance of persuasive written advocacy cannot be overstated. We’ve all heard from judges and adjudicators how critical the written materials we put before them are. I’m sure we’ve also heard how irksome it can be to our judiciary when they do not have the assistance of well-crafted, clear, concise facta. So much so that the Honourable John I. Laskin, recently retired from the Court of Appeal for Ontario, dedicated 13 pages in Spring 2020 issue of The Advocates Journal and a chunk of his retirement to remind us about “Persuasive Sentences”.

This isn’t the forum for rehashing what makes for persuasive written advocacy, only to emphasize its importance in this transitional time. As judges and adjudicators (and lawyers) get used to the ins-and-outs of oral advocacy in E-Hearings we should be loath to underestimate the value of effective and efficient written arguments to position the issues going into the E-Hearing and guide our decision-makers as they return to deliberate and write their reasons post-hearing.

To highlight the point, the Court of Appeal for Ontario released a motion decision on April 3, 2020, in which Paciocco J.A. ordered an appeal that was scheduled to be heard April 9, 2020 would be heard in writing, with the opportunity for the panel to ask questions by teleconference, at the panel’s discretion.[1] The appellant sought an adjournment to September or October, while the respondent requested that the appeal proceed in writing, with an opportunity for the parties to respond to panel questions either by teleconference or videoconference on April 9, 2020. Justice Paciocco noted that the appeal could be fairly adjudicated in writing and “The written materials reflect that they were professionally prepared. The appellant’s materials present the issues with clarity and the appellant’s position is well developed. The respondent’s materials are responsive.” He also considered that the issues on appeal—statutory interpretation, sufficiency of notice, alleged misapprehension of evidence, limitation period—were all “by their nature, capable of being addressed in writing.” He found that the delay of the appeal would be prejudicial and that a preference for in-person oral argument, while understandable, was not in the interests of justice. He ruled: “It is in the interests of justice to have the appeal proceed in writing based on the materials filed. The parties will have an opportunity to respond, by teleconference, to any questions the panel may have, on the date set for the appeal, April 9, 2020.”

While it may not always be “in the interests of justice” to direct an appeal hearing in writing, with questions from the panel by teleconference at the court’s discretion, it is notable that the court is willing to direct this method of E-Hearing, over the objections of a party. The importance of professional, clear, well developed written materials is of the utmost importance.

Exceptional Electronic Documents

Hand-in-hand with the significance of writing persuasive facta, preparing and filing exceptional electronic documents is key to effective E-Hearing advocacy. As many among us, both bench and bar, work through the transition to a more virtual delivery of justice there will no doubt be learning curves on all sides. We can simplify and facilitate this learning, flattening the curve long after we’ve collectively done our part to flatten the COVID-19 curve, by committing to delivering easy to navigate, user-friendly electronic documents. I’m no fan of trying to read a factum that looks like its been photocopied a dozen times, crumpled and run sideways through a fax machine, then finally “scanned” by an iPhone, compiled as jpegs and emailed in multiple parts. I’m confident that your motion judge or appeal panel won’t be happy about it either.

A few thoughts on things we can implement, if you haven’t already, to improve the workability of electronic filings:

  • Ensuring all e-documents filed are in PDF OCR searchable format with navigable tables of contents/indexes
  • Hyperlinking case references in facta to cases available on CanLii and/or cross-linking to an electronic book of authorities
  • Cross-linking references in facta to the motion record, appeal book, transcripts, or respondent’s compendium
  • Annotating electronic books of authorities to include a navigable table of contents with links directly to the paragraph references you intend to take the court or tribunal
  • Submitting electronic documents together by a single email in a zip file, a secure file sharing service, or compiled on a USB
  • To the extent possible, coordinating and cooperating with opposing counsel to permit cross-referencing between plaintiff/defendant, appellant/respondent, moving party/responding party materials

These are just some examples of readily applicable technologies that will make everything easier for all stakeholders in the justice system – lawyers, judges, witnesses alike. While these tools aren’t new, they hardly seem to be in wide use beyond a few specific forums. More widespread application of these tools now will not only facilitate a smoother transition to E-Hearings, but also militate against an immediate reversion to the paper-based norm when social distancing measures are no longer mandatory.

Setting up for Success

Once the written arguments are drafted and the electronic documents are filed, its time for the E-Hearing. Whether by telephone or videoconference, through CourtCall, Skype, Zoom, Webex, or any other platform, the key to success in E-Advocacy – as with all advocacy – is preparation. Just as every advocate will have their own process and ritual to prepare for an in-person hearing, the manner in which one prepares for an E-Hearing will be necessarily individualized. Find what works for you, whatever makes you comfortable and confident, and focus on the substance of the argument, not the form. Still, a few thoughts worth considering as you do prepare:

  • Check your phone / internet / browser capabilities. Make sure you’re actually able to connect to the E-Hearing service. To the extent possible, test the platform before E-Hearing. Familiarize yourself with the functionality and tools at your disposal within the various systems.
  • Make sure your phone and computer are fully charged and plugged into a power source. Seems simple, but we’ve all been there, asking strangers for a charger or desperately looking for an outlet before our phone or computer dies during an important call or drafting session.
  • Take time to set up your microphone and camera so others in the E-Hearing will hear what you need them to hear, and see what you want them to see. Test your microphone and computer audio. If you’re preparing for a video E-Hearing, make sure the camera is framed on your face, not your forehead or stomach, or tilted down at your desk or up to the roof.
  • Try getting on your feet. As we are able, we advocate primarily on our feet. We stand at a podium or lectern to make our submissions in court, so why not try to set up the same for your E-Hearing. Purchase a reading stand, or make-shift a podium that you can stand comfortably at and work from during the hearing and making your submissions.
  • If working remotely with co-counsel, set up an email or SMS chat to communicate confidentially back and forth as the hearing is going on.
  • Close the door! We all love our pets and kids, and the past few weeks have generated many adorable stories about dogs joining virtual meetings, cats taking over the keyboard, and kids adding their commentary to calls and dictations. But take the E-Hearing seriously. Shut the door and lock it. Ask your family to go for a walk. Keep the pets outside. Do what you need to do, but stay focused.

Following these steps and complete your own preparation and pre-hearing rituals, you will be set up for success at the E-Hearing. And remember, mute your microphone when you’re not speaking – whether during a telephone conference or videoconference – to avoid disrupting the hearing with vociferous typing, cute kids in the background, or comments under your breath that the microphone wasn’t supposed to pick up!

Be Patient with the Process

A final piece of advice: be patient with the process. As with all new systems, they take time to learn and familiarize oneself with. This will be true for all of us on both sides of the phone/screen. The connection may “lag” – as the kids say – and audio quality may cut in and out. Loading the right documents on everyone’s screen may take some trial and error (though we’ve been working with paper briefs for hundreds of years and every hearing I’ve been at still requires trial and error to ensure that the court and counsel (and, if applicable, witnesses) are holding the same brief, open to the same tab, looking at the right page or paragraph). Advocates may not be as quick to notice when the adjudicator has a question, or opposing counsel has an objection. Judges may speak over lawyers and vice versa as everyone settles into the nuances of this new technology.

These challenges are bound to arise. When they do, it doesn’t mean the system is unworkable and we need to get back to a paper-dependent, bricks-and-mortar-only delivery of court services as soon as public health authorities clear us to gather in groups larger than 5. It means that we need to come together, to work together, bench and bar, to smooth out the kinks and get back to work advocating for our clients and delivering justice to our communities.

[1] Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244.

This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.

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