The increasing use of electronic trials has prompted a discussion surrounding the advantages of this technology-driven change. What are some of the key considerations that should be examined around e-trials?
While law has historically been a paper-intensive practice, there is change afoot. Increasingly trials are proceeding with the assistance of electronic tools and procedural innovations that make them more efficient and cost effective. These electronic trials can include some or all of the following elements:
- Electronic trial record—accessible remotely or in portable offline storage (and available on tablets) for the parties and the judge;
- Electronic service of documents, including real-time updates to the trial record;
- Technology used to display evidence and enter exhibits;
- Real-time transcripts for the parties and the judge;
- Direct evidence by affidavit;
- Cross-examination and discovery through electronic documents; and
- Pre-set time allocation between parties (chess clock).
While the decision to conduct an e-trial will be a matter for all parties in conjunction with the trial judge, early and proactive planning can reduce the cost and improve the efficiency of the trial process.
An electronic record eliminates the constant shuffling of paper that can add unnecessary delays to the trial.
One recent example of the increasing use of electronic trials is the Ernst & Young Inc. v. Essar Global Fund et. al trial held in January 2017 on Toronto’s Commercial List. In that case, in which Torys acted as counsel for multiple defendants, the trial judge directed the parties to conduct this highly expedited trial electronically. Below is a review of six key considerations when approaching an e-trial.
6 Key Considerations of an E-Trial
Speed of trial. Running a modern electronic trial can greatly decrease the courtroom time needed to complete the trial. Direct examination can take up significant courtroom time as witnesses detail their narrative and begin the sometimes ponderous task of introducing documents into evidence. This can be avoided by introducing direct examination evidence by affidavit. This procedure will not be appropriate in all cases, particularly those in which credibility will be a central concern.
Electronic trials can significantly reduce courtroom time in other ways. An electronic record eliminates the constant shuffling of paper that can add unnecessary delays to the trial. For example, in submissions, as counsel alternates between written submissions, documentary evidence, transcripts and authorities, the documents can be instantly called up for the judge avoiding a flurry of page-turning as the judge tries to locate the correct volumes. Hyperlinked indices or submissions can make this even easier for the judge. Or, if there is need to locate and put to a witness a document for the purposes of impeachment, it can be easily located and called up for the witness and the judge.
Judicial efficiency. Anecdotal evidence shows that judges often prefer electronic trials. It allows them to efficiently write reasons for decisions. The trial judge can easily search the electronic record and will often take notes (via tablet) on the electronic record itself. And counsel should not underestimate the importance of allowing the judge to take the full record home on a tablet instead of needing to access the boxes of paper in his or her chambers.
Cost. In the majority of cases involving a modest to large volume of productions, the cost of an e-trial will be less than the cost of a traditional paper record trial. The cost-savings arise from avoiding: (i) printing, in particular when there are large volumes of documents and multiple parties involved in the action, (ii) expensive visual aids, (iii) storage fees, and (iv) the typical agent costs associated with service and court filing. This is contrasted with the expense of acquiring the hardware and software required to run an e-trial as well as paying third party vendors to set up and run the electronic equipment in the trial. In Toronto, you may have the benefit of the one Commercial List courtroom that is pre-equipped with the computer hardware, networking and software necessary for an e-trial. Lastly, the streamlined use of electronic documents in the courtroom, described above under “Speed of Trial” saves lawyers’ time, which in turn saves on legal fees.
Multiple parties. The more parties involved in an action, the more expensive and logistically complex a paper trial becomes. An electronic trial removes many of these additional costs and can help ensure that each party is (literally) on the same page as the trial progresses.
Advocacy. The electronic trial creates opportunities for improved advocacy. Real-time transcription is available to the judge and all counsel on laptops or tablets, facilitating increased responsiveness to evidence or argument. Trial software allows for improved use of documents and visual aids: highlighting and magnification of documents ensure that all parties and the judge can follow the salient points of the presentation.
Appeal. At the end of the trial, an electronic trial record has been prepared, including the trial transcripts. This allows an appeal record to be assembled quickly, critical in cases where time is of the essence.
Trial software allows for improved use of documents and visual aids: highlighting and magnification of documents ensure that all involved can follow the salient points of the presentation.
The Essar E-Trial Experience
Torys was counsel to several defendants in the recent trial in Ernst & Young Inc. v. Essar Global Fund et. al. The claim was made under incredible time pressure. The claim was issued on October 20, 2016 and the hearing was booked for a single week at the end of January. In the intervening time, the parties produced thousands of documents and conducted 27 party and third-party examinations. Due to the global nature of the case, the examinations occurred in Sault Ste. Marie, New York City, London (UK), Singapore (videoconference) and Toronto in a span of 14 days. In addition to the four core parties, five interveners participated in the trial and hundreds of pages of written submissions were filed by the parties.
To accomplish this trial—from pleadings, to documentary discovery, to expert reports, to examinations, to hearing—within the 15 week period provided by the trial judge, it was essential for the parties to cooperate in creating an electronic framework for the trial. All documents were produced electronically and most of the examinations were conducted electronically, with documents shown to the witness on a tablet and marked by production number. At the trial judge’s direction, the trial record was loaded onto his tablet and circulated electronically to counsel. The trial judge was able to follow argument through his own electronic record and mark-up documents with his own notations as argument progressed. All of the documents were hyperlinked (as were numerous submissions and demonstratives) to allow easy transit between submissions and documentary support.
An undertaking of this magnitude required careful preparation and cooperation; however, the efficiencies and cost-savings were significant for all parties involved and were necessary for this highly expedited trial to proceed.
Against the current backdrop of rapid economic and political change, the art of adaptation is more important for business than ever.