Law Times, Sunday 25 April 2010
By: Michael McKiernan
A judge who spearheaded the use of paperless trials in Ontario says the justice system is moving too slowly to embrace technology after a justice of the peace banned a lawyer from using his laptop in court.
Nevertheless, Superior Court Justice Thomas Granger says the case is an isolated incident since almost all judges allow laptops. But while the general trend is towards greater acceptance of technology, that embrace isn’t as strong as he would like.
“It’s a paperless world we live in,” says Granger. “Expectations have changed for everybody except the court system. If I walked into a bank, and they had all my records on paper, I’d walk straight out of there.
That’s what they did 30 or 40 years ago. When a client walks into a courtroom and sees these boxes and boxes of photocopied paper, they must think they’ve entered a time warp.”
The renewed debate over technology comes after a justice of the peace ordered criminal defence lawyer Sean Robichaud to switch off his laptop during a stunt-racing trial in Whitby, Ont. The Crown prosecutor objected to the laptop’s potential use as a recording device.
“Of all the arguments I had anticipated that day, that one didn’t even come close to the radar screen,” Robichaud says. “I was so taken aback that I was virtually speechless for the first couple of minutes trying to form an argument on how to respond to that, maybe because I wasn’t allowed to use my laptop to do so.”
Robichaud says he informed the justice of the peace that the computer contained all of his notes on the case. As a result, he had to ask for an adjournment because continuing the trial would have compromised his client’s defence.
Later that day, Robichaud says he got a call from prosecutor Veronica McGuire saying she had changed her position after talking with colleagues and wouldn’t object to the laptop when the case returns to court in August.
“I really don’t have any comment to make on it at all,” McGuire tells Law Times.
Ontario Chief Justice Warren Winkler brought the technology issue to the fore at the opening of the courts ceremony last September, when he urged the courts to adapt to the electronic age.
“Anachronistic methods of doing business that do not take advantage of available electronic court information are inefficient for the administration of justice,” he said. “They can also be costly to the users of the system and inconsistent with the expectations of the public.”
It’s an argument that resonates with Granger. Last October, he delivered his judgment in a complex trial involving almost 3,000 exhibits and about 70,000 pages (see “Case ends in $11-million judgment against Ottawa executives”).
Each document was scanned into a litigation support program, saving thousands of dollars in photocopying costs alone. Granger says electronic storage can also improve advocacy because judges can immediately access relevant information.
“If you did it in hard copy, you’d have bankers’ boxes full of these photocopied exhibits,” he says. “Sitting in front of me is a laptop with everything at my fingertips: those 2,882 exhibits, 300 days of evidence, 3,500 pages of submissions, and a judgment of 700 pages. Wherever I go, it goes. I’ve got that one chained to my wrist.”
Edward Prutschi, a lawyer with Bytensky Prutschi in Toronto, also sees the Whitby case as an outlier. He finds increasingly complicated disclosure now routinely comes in digital format and that a significant shift in lawyers’ attitudes has become apparent in recent years.
“I think the bulk of judges, counsel, and all actors in the process are moving slowly to adoption of technologies that will make the process more manageable. You do get some of the old guard who get disclosure on CD and request that it be printed out. But there’s starting to be some push back to that.
I think there will be a point where a court says that’s not part of counsel’s disclosure obligation. You have it in a standard format and you’re going to have to figure out how to utilize it.”
For his part, Robichaud says laptop use has become the norm for most lawyers in court and traces his own dependence on it to his time in law school less than a decade ago.
“I used it from Day 1 and I haven’t stopped since. It’s a pretty rare day where I pick up a pen and start writing anything anymore.”
Pulat Yunusov, a student who has just completed his third year at Osgoode Hall Law School, says the trend has only intensified since Robichaud graduated in 2004.
“If you come to one of my classes, you will see a room with rows and rows of laptops with people typing. They are critical to us. I don’t like being tied down to any physical location, so most of my data and readings are online.”
Of course, it’s not only students who are embracing technology. Professors run web sites for courses, and the school has a large audio archive of lectures and talks available online. Yunusov fears any restriction on technology risks limiting access to justice for those who can only afford representation by smaller firms.
“When a solo lawyer comes up against a powerful party like the Crown or a large firm, this cheap technology levels the playing field, at least a little bit,” he says.
Still, Granger says he’s surprised more lawyers, especially younger ones, don’t bring laptops into his courtroom.
“I think some lawyers see the tradition of courtrooms with paper and books and they’ve yet to move into this new era of electronic technology,” he notes, adding they sometimes seem to be waiting for a sign.
“I heard a motion not too long ago where one counsel was not using a computer, but as soon as he saw me using mine, he couldn’t wait to get his out.”
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