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Back to the future: Life in law forever changed by pandemic

Technological advancements aren't a cure-all, though; Opportunity for impromptu discussions on the courthouse steps that can lead to resolution have disappeared
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There’s no going back.

The justice system has undergone a digital transformation these past 16 months and the province’s attorney general has indicated that not only are many of these changes permanent, but there’s more to come.

The pandemic forced the courts and the administration of justice to figure out a whole new way of managing to maintain some semblance of justice while anything that could, was put on hold, at least at first. 

Many efficiencies then emerged such as electronic filings and the virtual signings, commissioning documents and signing wills with a significant shift away from a reliance upon paper as well as a full-scale introduction of online meetings and court appearances.

Gone are the banker's boxes full of documents, now replaced by PDFs and Microsoft Word files.

“The court was almost entirely paper almost a year and a bit ago. Most law firms, in my experience, are now largely electronic,” said local lawyer Steve Rastin. 

Prior to COVID-19, the transition to a paperless system was slow and gradual. The pandemic put all that on fast forward with the introduction of electronic filing and communication and so much work now done virtually.

“The changes were overdue and I think COVID accelerated the need for these changes. The missing piece of the puzzle, to some degree, is the jury piece,” said Rastin, a personal injury lawyer and past-president of the Ontario Trial Lawyers Association who is also a mediator in Barrie.

Jury trials have, for the most part, been on hiatus since March 2020, with the expectations that they will resume this fall.

A big plus has been the saving of time. 

Systemic efficiencies have accompanied the digital revolution in the justice sector which Barrie criminal lawyer Gary Pickard says have presented many advantages. His practice, he says, is no longer so reliant upon as many court appearances to move a case along.

Trials are scheduled now by email and there are virtual meetings with the Crown attorney and the police to work out the details of how the case will proceed that is endorsed by the court at the next appearance.

“There’s no more waiting around in court to set a trial date or preliminary hearing date,” he said.

And pre-trials are now conducted via teleconference with a prearranged time slot. 

Previously, those in-person appearances were something of a cattle call, with the parties for a list of cases all showing up at the courthouse at the same time only to wait for perhaps the entire day for their few minutes before the judge or justice of the peace.

And then there’s the ability to connect from anywhere. Instead of having to spend most of the day going to Collingwood or one of the area’s satellite courts for a 15-minute appearance to set a date, Pickard can save some tire rubber by going online for the hearing, and perhaps do some work while he’s waiting in the queue for his live screen time before the judge.

“From the defence point of view, it’s far more efficient than it used to be, especially in Simcoe County where there’s so many satellite courts,” he said.

There are economic benefits for clients, too, says Barrie litigation and employment lawyer Josh Valler. His experience also includes less time in the car and less time spent out of court, which translates into savings for the client.

He contrasts a recent court appearance before a court in North Bay then and now. Prior to the pandemic that would involve a two-hour drive, a day-long attendance, an overnight stay, followed by another two day drive  all billed to the client.

Now they have the ability to conduct discoveries electronically no matter where in Ontario all the players are, eliminating the travel time and the associated costs with the added convenience of the client logging in remotely as well.

And that means a greater access to justice for anyone finding themselves having to navigate the civil, criminal or family courts.

“In the last year and a half, we’ve seen the justice system catch up, or do its best to catch up and advance... it seems like overnight” with input from lawyers, the judiciary and government, Valler said. “All the stakeholders had a huge role to play in this.

“The electronic component of the practice of law is here to stay.”

Valler believes there have been some valuable lessons learned about how the legal system could operate more effectively.

But Valler points out that something is lost with all those efficiencies: human interaction. The opportunity for impromptu discussions on the courthouse steps that can lead to resolution of cases or some of the issues have disappeared.

The reality and seriousness of a case can also be lost and of course there’s the decorum demanded by the system for anyone appearing in a courtroom.

For Rastin, the changes in the system meant changes to his practice.

As an independent lawyer since 2002, he was already experiencing a more competitive environment including the use of mass advertising and marketing.

When the pandemic hit, he found the introduction of more of the electronic applications often incompatible with his pre-existing platform. He wanted a broader, seamless system that wouldn’t take time away from his practice. 

Fewer trials also meant that much of his work was on hold  which presents a challenge to lawyers working on contingency, because it means they cover all the costs and aren’t paid until the case reaches resolution.

So Rastin joined the Toronto-based Gluckstein Personal Injury Lawyers while maintaining his practice in Simcoe County.

“I had a three-week trial scheduled to take place in June 2020 on a multi-million-dollar case that I had been years waiting to go to trial. And the court cancelled my trial in April due to COVID. I couldn’t get a new date from them and eventually I was told I’d be lucky to get a new case in 2023,” he said. “The challenge was not having the system in place that you could take the work through to its inevitable conclusion.

“My decision to go with Gluckstein was based on the concept of being able to work with high-quality people, being able to work with cutting-edge technology and basically being able to align with somebody who had more resources in place to better serve my clients," Rastin added. 

Ultimately, he was able bring the case to resolution through mediation.