We must carefully consider the implications before discarding in-person proceedings
Should there now be a presumption that courts conduct all family law hearings virtually?
Many lawyers believe so. More than 1,000 Ontario family law practitioners have signed a petition asking for a direction that all court attendances shall be presumptively virtual unless the parties agree otherwise or the presiding judge has a good reason to order that a particular attendance be in-person or hybrid. Proponents argue that virtual hearings are less expensive for clients, leading to enhanced access to justice for those who cannot afford to pay for their lawyers to travel to a courthouse and then sit and wait for hearings to commence. Sounds reasonable, right?
Not so fast.
I might be an old-fashioned fellow who doesn’t want to give up the world I was used to before the pandemic, but I think we need to be careful before ditching our traditional way of conducting business. Virtual hearings are advantageous in some scenarios, but there are at least three reasons why moving to an almost entirely virtual legal world may prove problematic.
First, my experience in nearly thirty years of practice has been that settlements are easier to achieve when all parties and counsel come together in person. I recall numerous occasions of walking into a courthouse at about 9:30 a.m. pessimistically thinking that we would accomplish nothing that morning and then walking out of the building a few hours later pleasantly surprised that the parties obtained minutes of settlement. I often go to court and realize that it will probably be an hour or two before the case gets called. Opposing counsel and I then go to the cafeteria to get a coffee, and then we find a room to sit down (sometimes with the clients), put our heads together, and try to come up with some solutions.
It may just be human nature, but I have found that consensus is easier to obtain when people sit face-to-face with each other instead of talking through a computer screen.
Similarly, there is something about coming to court that tends to motivate clients to take reasonable positions. Maybe it is the solemn experience of entering the courtroom, sitting at the counsel table, and directly facing the judge. Parties generally become motivated to settle when they hear the judge tell them that their case is resolvable and it will be in the children’s best interests to try to reach an agreement before the parties leave the building that day.
Virtual hearing proponents will respond by noting that discussions are in most cases mandatory before a court appearance. Settlements should thus be equally attainable at a virtual hearing.
In my experience, however, meaningful pre-court discussions rarely occur if one or both parties are self-represented. Even when retained counsel are on both sides, it is not unusual to find that busy counsel managing multiple files don’t seriously attempt to guide their clients to a potential resolution until the court date arrives.
And there lies a potential problem with virtual conferences. Counsel set aside a relatively small amount of time for the meeting, and once the time is up, they may be tempted to zoom out as soon as possible and move on to another file. It is thus entirely possible that parties reach fewer settlements at virtual case and settlement conferences.
We need feedback from the judiciary on the effectiveness of virtual as opposed to in-person conferences. We can’t seriously consider a permanent move to having all hearings presumptively virtual without knowing what it would mean for the management of family court files. I am unaware of any significant analysis comparing the rates of early resolution of files at virtual and in-person conferences.
Second, proponents of the presumptively virtual system also seemingly ignore that many family court litigants are self-represented, possibly as high as 80 percent. Self-reps cannot meaningfully participate in a virtual hearing if they don’t have access to a laptop and the internet.
Further, self-reps frequently rely on the assistance of duty counsel at their court appearances. Remote duty counsel is not the same as in-person duty counsel, and anyone who would suggest the contrary has probably never done duty counsel work.
My experience as a per diem duty counsel has been that the clients frequently arrive at the courthouse with a briefcase full of documents but without knowing what is relevant for their hearing that day. Some forms are only partially completed. They may have proof of income with them but no sworn financial statement.
An in-person duty counsel can review the client’s material and then provide realistic advice about what the client can accomplish that day. I find it difficult to see how a duty counsel on the other end of a Zoom screen can provide the same level of service.
Third, an all-virtual world would inevitably lead to more isolation for members of our profession, with much less human interaction. The days of the courthouse lawyer lounges being full during morning and lunch breaks would seemingly be gone forever.
The rise in mental health awareness during the pandemic has taught us how the virtual world is no substitute for the real world. The Law Society of Ontario has recently prioritized issues pertaining to the mental well-being of lawyers, and our governing body needs to consider the impact of a move to permanent virtual court hearings, particularly on new lawyers.
I opened my own practice shortly after being called to the bar in the early 1990s because we were in a lousy economy with few available jobs. Going to the courthouse for my court appearances was of invaluable assistance to me, as that is how I met other lawyers who became friends and mentors. I doubt whether I would have had the confidence to do trials as a rookie lawyer if I did not have the assurance that I could always find a familiar face in the courthouse library or lounge if I ran into unexpected problems.
I can’t imagine what it would have been like to start on my own if I did all my court appearances in a home basement. Virtual court hearings are undoubtedly here to stay to some degree. Still, we need to stop and carefully consider all the implications before we move to a presumption that courts conduct all hearings virtually.