When I entered the legal field as an articling student in 2019, I was well aware of the legal profession’s reputation for being resistant to change. But in 2020, I watched just about every aspect of this profession adapt to become digital as courts adopted new technology in order to continue functioning in the midst of an unprecedented Pandemic. Court filings, proceedings, and document commissioning, all things that were once required to be done in person, could now be conducted via Zoom. The court itself seemed to recognize just how much technology had changed the legal field, as Justice Myers wrote in WORSOFF v. MTCC 1168, 2021 ONSC: “Counsel and the court alike have a duty of technological competency”.
The Pandemic may not have been the disruption courts wanted, but it was the disruption that courts needed. Remote hearings helped avoid unnecessary delays and made scheduling easier. Lawyers providing virtual services could reach more clients than they could if they were restricted to an in-person setting, especially clients living in rural areas. Self-represented parties were also much more likely to attend court now that they could do so online.
Of course, there are downsides to virtual hearings as well. Many rural areas in Canada still have poor access to the internet. In many ways, the Pandemic had made the digital divide in Canada all the more apparent. Other concerns questioned the fairness of virtual trials. With in-person hearings, judges and jurors can gauge witnesses’ credibility through their demeanor and body language. With the advent of Zoom hearings, some in the legal field voiced concerns that the loss of in-person observation could impair a judge’s or tribunal’s ability to assess credibility.
No one is arguing that virtual hearings are perfect, but I’d argue that the overall advantages of virtual hearings vastly outweigh their disadvantages. While it’s true that not everyone has access to the internet, the vast majority of Canadians do. A recent study indicated that 97% of Canadians have access to the internet, and 87.4% have access to unlimited broadband. Those that don’t have access to the requisite technology can be accommodated through hubs in local libraries or in courtrooms equipped to allow for video conferencing. And while its true virtual hearings can impair the ability of a court to gauge a witness’ demeanor and body language, that can also help check the racial and cultural biases that inflect our perceptions and keep the focus centered on more reliable forms of evidence. But above else, virtual hearings have, by in large, improved access to justice in our legal system, and to borrow the words of Justice Myers, “Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time.
With the nation coming out of the Pandemic, it’s disheartening to see some courts release guidelines establishing a presumptive return to in-person hearings for most steps in a proceeding, including case conferences and examinations for discovery. In many ways, this seems like a step backward. Whatever problems virtual hearings may have, many lawyers have argued that reverting to exclusively in-person appearances would make things worse rather than better.
When I look back at my career decades from now, I wonder how new and emerging technology will have changed the legal profession. New and disruptive technologies like AI are already becoming commonplace in big firms and changing how lawyers conduct legal research. And while each new technology will undoubtedly bring new sets of challenges, I for one look forward to the day when I can attend court via hologram from my home office with briefs prepared by my AI assistant.
Max H. Shin, Associate Lawyer