By Alan Gahtan - November 6, 1995
Litigation lawyers are increasingly utilizing computer technology in their practice. The latest developments were discussed at a recent Canadian Institute seminar on Practising Litigation in the Age of Computer Technology.
Rodeny D. Dale opened the sessions by describing how the legal profession has been a slave to tradition. We use traditional language and in court we wear traditional robes. He stated that tradition was not a bad thing unless it holds you back. It hasn't held back lawyers from using modern tools such as cell phones and fax machines. It shouldn't hold back litigators from using the latest computer tools to make their point in court.
Three of the session focussed on the use of computer-generated demonstrative evidence. The speakers included lawyers who have actually utilized such evidence in past cases such as Roger G. Oatley and Steven Skurka. Oatley discussed Clapperton v. Bailey and the County of Frontenac, a 1992 case he was involved with as counsel for the plaintiff. This case was the first civil case in Ontario where a computer generated image was introduced.
In the Clapperton case, by the time Oatley was retained the, defendant road authority had removed a mound of earth which had obscured visibility at the intersection where the accident had occurred. Using a couple of still photographs taken by an adjuster before the berm was removed, Site Plans Inc. was able to reinsert this obstruction not into a still photograph but into a video showing what the driver would have seen as he approached the intersection.
Steven Skurka discussed R. v. McMahon, the first use of a computer animation in a Canadian criminal trial. Skurka had been hired to defend a Metropolitan Toronto Police officer charged with dangerous driving and assault. David Robson of Physical Evidence Productions Inc. showed the animation he had produced for Skurka. Robson also showed an animation he had created for the first computer animation ever used in a murder trial in Canada (R. v. Suzack & Pennett).
A typical animation is about 10-15 seconds in length. The animation is usually rendered from multiple camera angles. Costs can vary depending on the complexity and resolution, however, costs average about $1,000 per second.
Martin Felsky, a Toronto lawyer and independent technology consultant to law firms, gave a practical demonstration of the importance of electronic discovery. Instead of discussing a lot of theory, Felsky distributed a printout of a mock memo and then vividly showed all the useful information contained in the electronic version of the memo on his laptop. This was information that would have been missed if the electronic copy was not examined.
C. Ian Kyer and David G. Stinson of Faskin Campbell Godfrey provide an introduction to legal resources on the Internet. They took the audience on a journey of various web pages and through how Stinson was able to use the World Wide Web to locate an expert witness on a specialized area. The two didn't pass up the opportunity to show the audience a quick sample of their firm's new web page (http://www.fasken.com).
Anne Roland, Registrar of the Supreme Court of Canada, provided an interesting history on the use of video conferencing by the top court. In December of 1983, the SCC held its first hearing by video conference. The Court took this step in response to concerts of litigants, primarily from the west, about the high cost of travelling to appear before the Court.
In 1985 a permanent video conferencing facility was installed in the courtroom. The equipment proved very popular. In the 1985-86 term approximately 22% of leave applications were argued using the technology. However, in 1988 the Supreme Court Act was amended and parties were no longer automatically entitled to present oral argument on leave applications.
In 1991, the Court upgraded the system to state-of-the-art technology including multiple monitors and voice-activated cameras. On April 1, 1992, the Court heard an appeal from lawyers in Moncton regarding a family law case without any counsel actually present in Ottawa. The system is now available for hearings on leave applications, appeals and chambers motions in special circumstances.
Unlike the more common but lower quality ISDN-based video conferencing systems utilized by many major corporations, the system installed at the SCC uses special high-bandwidth technology which produces TV quality pictures. It requires access to dedicate circuits from Stentor. Access to the system is limited to approximately 10 locations operated by Stentor.
The video system installed at the SCC has had other benefits. It can function as a close-circuit television system so that proceedings can be viewed in adjacent rooms. It can allow the court to provide a feed of the proceedings to broadcasters. Finally, tapes of the proceedings provide an additional record of an appeal and are sent to archives.
Additional Canadian experiments in video conferencing are taking place in Ontario, Alberta and Quebec. Ontario is currently running two experiments. The first involves a voluntary program for bail hearings and remands involving young offenders in Ottawa and London. The second, scheduled to start shortly in North Bay and Sudbury involves General Division motions, pre-trial hearings and conferences.
Other speakers at the seminar discussed technological developments in Ontario courts. David Wires talked about Ontario's Civil Justice Review. The task force's report included recommendations for the use of technology in the administration of justice in the province. The recommendations addressed video conferencing for civil motions, document imaging, indexing, retrieval and storage, electronic filing of pleadings in court by remote access and computerized databases to support caseflow management.
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