Shifting the burden of proof on virtual v. in person legal proceedings

When determining the best course, in-person is no longer the default

Shifting the burden of proof on virtual v. in person legal proceedings
Should courts go back to normal or stay virtual? Most lawyers would answer that question with a lawyerly “It depends.” In this case, they would be correct, given the variety of proceedings.

However, there has been a fundamental shift with the pandemic. We can now add another lawyerly caveat to the answer by saying, “It depends, but the burden of proof has shifted.”

In other words, the presumption before the pandemic was that all legal proceedings should be in-person. Phone and video calls were rare exceptions, and any lawyer who suggested they would work better had to prove why.

But the world has changed dramatically with the pandemic. “Our job is to be persuasive advocates, and whether that’s happening virtually or in person, I don’t really think that has fundamentally changed,” says Andrea Wheeler at Lenczner Slaght in Toronto.

For a lawyer like Wheeler, who practises business litigation, her clients, opposing counsel, and the judges hearing her clients’ cases are likely keen to go virtual. With sophisticated clients and complex issues, business disputes are ideal for virtual proceedings.

For other areas of law, though, like criminal and family, many courts have shifted dramatically back to in-person proceedings. Judges are tired of Zoom proceedings with an inappropriate air of informality, in which witnesses are driving while they speak – or, more egregiously, proceedings are secretly recorded or witnesses coached in the background.

But what these examples illustrate are the extremes – and there are ways to address them without the knee-jerk reaction of going “back to normal.” Most lawyers now agree that credibility determinations do not require you to see a witness in the flesh.

And the access to justice benefits for virtual are immense. Zoom turned a divorce from a five-to-six-hour day into 45 minutes, and saved clients thousands of dollars per court attendance, says family lawyer Russell Alexander.

So the answer to “Virtual or in-person?” will continue to be “It depends” when determining the best course. However, the default is no longer in-person. The question now is, “If you think in-person is best, show us why.”

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