My 10 Takeaways From Going To Trial During The COVID-19 Pandemic

Author(s): Stephen M. Birman

April 20, 2021

In February, my Partner Aleks Mladenovic and I completed a virtual medical malpractice trial. Last October, my partner Robert Ben and I conducted an MVA jury trial, in person!

I am fortunate to be one of a few lawyers who have been involved in both forms of trial during the pandemic. During this period, civil juries have sat for only three weeks in Toronto since March of 2020.

For lawyers, these newer forms of trial require some adjusting as I will highlight below. For clients, I note that virtual trials are far less intimidating and stressful than traditional trials since you do not need to go to the Courthouse day after day and deal with unfamiliar surroundings.

My experiences were unique, and in the spirit of Top 10 blog posts, I have included some thoughts/pointers below.

1. Hire An External Provider To Help With Technology

Trials are stressful without the stress imposed by technological adventure and malfunction. I can’t imagine not having hired Arbitration Place and Neesons to help with the technology in the respective trials. Whether it’s setting up TV screens and feeds in the Courtroom or ensuring that witnesses have proper virtual set ups, their services were vital and they will be there for you when there is an inevitable technological hiccup along the way.

2. Create Joint Books of Documents

In both trials, we had joint books of documents. In the February trial the joint book was less than 300 pages. In the October trial, with document handling concerns in the Courtroom due to COVID-19, almost everything was admitted as an exhibit up front. The Judges appreciated the work done in advance by counsel to simplify this process.

3. Stay Flexible

In our October trial, we were faced with a suspension of jury trials (while in the middle of a jury trial!). In the February virtual trial we dealt with possible COVID-19 related health issues as well. In one scenario, unexpected events might have led to a settlement, and in another, appropriate accommodations were available. Either way, flexibility is required (though this applies in the normal course as well).

4. Take Advantage Of The Technology And Your Surroundings

In our virtual trial, I had three screens running at a time. I had a monitor set up with the live Court feed, a second monitor from which I was able to review documents and witness outlines and a third screen on the go that contained the live Court transcript. My surroundings were a boardroom where every court filing etc. was easily accessible. During moments of uncertainty it was easy to find what I was looking for, which is not always easy to do in Court.

5. Buy The Same Day Transcript – But It’s Expensive

If you can justify it, absolutely splurge for the same day/live transcripts. Being able to read back and review a witnesses testimony in real time is invaluable. While the cost is significant, it’s worth it, especially in a complex medical case, which can turn on a statement from any expert.

6. Learn How To Use Caselines

Caselines, or whatever repository the Court uses going forward, is the way of the future. It’s amazing to be able to see exactly what is in the Court file and easily refer the Court to it.

7. Adjust To The Informality

A virtual trial is far less formal that a trial in a Courtroom. The lawyers are sitting down (or at least can be, as we were) and robing is not required (at least it wasn’t in February, 2021). In our jury trial, we had jurors sitting throughout the Courtroom and we had to make unusual adjustments like turning our back to the Judge to address the jury. Everyone adjusted and stayed flexible (see number 3 above).

8. Invite Your Associates/Students And Family To Watch

Our virtual trial had a YouTube feed. Everyone could watch. Invite those who can learn from the experience and your “fan club” too. In my case, I invited my father who tuned in for daily viewing and provided some armchair quarterbacking.

9. Consider Your Witness Set-up

Optics are important, so pay attention to how your witnesses appear on camera. In one case, we had a physician testifying in his lab coat from his office using demonstrative evidence that was taken from his desk. Genuine and helpful. In another case, I saw a witness not dressed professionally and shifting around in a rolling chair, which I found gave the appearance of evasiveness.

10. Stay Safe

Throughout both trials, safety and social distancing were respected by everyone.

From jury selection at the Convention Centre, to retro-fitted courtrooms, to a completely virtual set up, the focus on the safety of everyone involved was paramount This will need to continue to be the case as we adjust to the ongoing COVID-19 pandemic, especially if and when jurors return to the Courtroom in one form or another.

Thomson Rogers offers free consultations so please feel free to reach out to us at any time. We are here to help.

Thomson Rogers partner Stephen Birman has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario and ranked AV pre-eminent in Martindale-Hubbell ®. Stephen’s practice focuses on personal injury litigation and class actions. You can reach Stephen at 416-868-3137 or by EMAIL.

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