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Virtual hearings here to stay

PI lawyer predicts the cost-efficient option will last beyond COVID-19

Virtual hearings here to stay

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Yoni Silberman, partner at Bogoroch & Associates LLP, just wrapped up her first hearing by videoconference, and while there are upsides and downsides, “in the case of representation of plaintiffs, bringing down costs is always an advantage and virtual hearings achieve that.”

An example of cost savings is that witnesses, some of which may be expert witnesses, do not have to book an entire day off work. They just click a link, pop on for the couple of hours it takes to give their evidence, and then are free to return to their practise.

“That’s an advantage that is an immediate and recognizable benefit of having a virtual hearing,” Silberman notes, adding that minimizing expense allows for greater access to justice. “When restrictions ease, I think video conferencing hearings will carry on — this is not just a moment in time.”

Over the last few months, the License Appeal Tribunal — which deals with access to vital benefits, such as medical benefits and income replacement benefits, or even more significantly a determination of catastrophic impairment that could open the door to far greater care and treatment — has begun scheduling hearings to take place virtually, where the facts and circumstances allow, and the Ontario Superior Court is conducting virtual trials, which can be more easily accommodated in the current environment. However, one of the downsides of virtual hearings is that the parties involved “are entirely dependent on a reliable internet connection, and first and foremost, having access to a computer at all, which is not always the case for our clients,” Silberman says, including the individual she just represented.

Depending on current COVID restrictions, there are ways around it — reporting offices are open for business when areas are not in lockdown, for example — but you have to weigh the additional cost as well as the risks of being physically proximate for an entire day to the lawyer that attends with you.

Taking things virtual has also left proceedings at the mercy of the environment: you can prepare a witness for a hearing or trial, but you cannot plan for a participant having construction at their home, or the impact of a poor internet connection on someone’s testimony. These interruptions can be frustrating for the person giving evidence but also for the hearing adjudicator or Superior Court judge who is trying with careful consideration to hear the evidence of this individual.

“It can cause an unexpected complication in what we’d like to think of as an otherwise regimented and streamlined process,” Silberman says. “As much as you’d like to control the factors at play in a hearing, there is no control over external elements when people are joining from their homes.”

While people who attend online courtrooms every day have found ways to optimize their virtual workplaces, the best way to address people like experts, doctors or the injured party is through preparation — do not simply send them the link and leave it to them to figure it out. Part of the new, virtual process is activating that link with them, Silberman says, and walking them through how to connect as seamlessly as possible. If they are using a tablet or a cell phone, make sure they have a charging cord nearby, and a set of headphones.

“While these are minor details you assume most people will prepare for, it’s not intuitive,” she says. “There is so much at stake when you have a hearing or a trial — you have one chance to present your evidence cogently and clearly. As lawyers, we know what to do to get ourselves ready, but giving evidence through a virtual platform is new for many, if not most, of our witnesses.”

As part of preparing for her most recent hearing, Silberman says she spent quite a bit of time making sure each and every person she was calling was well-equipped and well-connected, noting it can be the difference between “getting their evidence off to a great start, or getting their evidence off to a frustrating and fragmented start where the witness is already at a disadvantage.”

While there are numerous factors at stake, ultimately Silberman does not think the virtual platform is less preferable — in fact, sometimes it can be the better choice.

"There are cases and circumstances that can proceed quite economically, efficiently and at a high standard through video conferencing.”

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