Virtual Series – Virtual Oral Advocacy in British Columbia

The COVID-19 pandemic has significantly hastened a move towards video hearings for trials, appeals, and arbitrations in British Columbia. Whether the significant uptick in video use for hearings will persist once pandemic restrictions relax is uncertain; however, the likelihood of social distancing measures remaining in place for the foreseeable future means that the use of video technology for hearings will remain for the time being.

Most critically, the use of video technology in oral advocacy poses challenges for litigators because the art of advocacy changes from in-person to video submissions, much as acting changes from the stage to the screen.

Background

In British Columbia, the Supreme Court resumed holding in-person trials effective June 8, 2020. However, significant social-distancing changes have been implemented. Plexiglass dividers have been installed. Counsel must distance themselves at counsel table.  Significantly, the Court has strongly indicated that witnesses should testify remotely as much as possible.

Arbitrations, being private dispute resolution processes, have always allowed for greater procedural flexibility than traditional trials. The more informal boardroom setting of arbitrations has also traditionally provided an easier way to incorporate video testimony. Now, using separate boardrooms in a virtual chat application provides an easy manner to conduct socially-distanced arbitrations.

For appeals, the Court of Appeal directed that effective May 4, 2020, all appeals would proceed by way of videoconference unless otherwise directed. The first video appeal was Trenchard v. Westsea Construction Ltd. using the Zoom platform and is available for viewing on the Court of Appeal website here.

Commentary

Clearly, the move to using online platforms to lead witness evidence, conduct cross examinations, and present oral argument presents challenges to advocates whose experiences have largely been in live settings. Most prominently, whether in the Courtroom before a judge (or panel of judges) or in the boardroom before an arbitrator, we have been conditioned through years of in-person practice to adjust to social cues in order to advocate convincingly on behalf of clients.

The goal does not change in virtual litigation; however what constitutes effective and convincing advocacy does, and the differences extend beyond just the manner of oral presentation.

Seamless control of electronic documents is critical. In the paper world, effectively directing a judge or arbitrator to a binder of documents is an essential skill of a well-practiced litigator. The time used to introduce documentary evidence allows counsel and the judge to gather their thoughts and prepare to take in the import of the document before them.

In the virtual world, careful preparation of the documents and planning their use is very important. During a hearing care should be taken when directing the judge or arbitrator to a hard copy or hyperlinked document. Selecting a hyperlink should seamlessly display the documentary evidence. Appropriate pausing should be employed to allow for the importance of the document to register. Rushing to get to the document, or technical difficulties, will both throw the witness, opposing counsel or judge off if not done properly.  If it hasn’t already been acquired in some way, this skill should be well-practiced beforehand.

Mark C. Stacey, counsel for Westsea Construction Ltd. and a partner at Singleton Reynolds, had the following comments regarding the successful video appeal:

“Successful virtual advocacy requires that counsel anticipate the technological challenges which will allow for the effortless presentation of the evidence, case authorities and legal arguments.”

Co-counsel take on added responsibility virtually. Claire Immega, partner at Singleton Reynolds, and Talya Nemetz-Sinchein, associate at Singleton Reynolds, participated in separate video appeals as co-counsel and offer insight into the advantages that co-counsel can bring to a video hearing. They explain that no longer is co-counsel passing binders of documents and taking notes, but they are an on-demand technical and substantive resource in virtual litigation. There may be a great additional strategic advantage to be leveraged in on-line hearings as the muting of microphones in chat platforms allows for much easier communication between co-counsel during testimony and argument, and other communications platforms can be simultaneously employed.

Counsel should be mindful of the potential for technological errors arising. Fumbling about during the hearing will affect the confidence of the advocate and the focus of the judge, arbitrator or witness. Significant practice beforehand will alleviate the risk of this occurring during the actual hearing. Moreover, significant practice will also allow for review and critique of what is most effective and what is least effective in a video presentation, including technical items such as background and positioning of the camera and what personal idiosyncrasies may be distracting. Even a difference in the extent to which counsel moves on screen can detract from the effectiveness of advocacy in a way that it does not in-person.

That said, moving a hearing to a virtual platform may lead to significant costs savings by eliminating travel costs for witnesses and counsel as well as forcing counsel to streamline procedures. When the pandemic was declared during a break in the middle of a multi-week arbitration, H. David Edinger, partner at Singleton Reynolds, pivoted the arbitration from an in-person to a virtual setting, resulting in reduced time and costs of the hearing.

Tristan Packwood-Greaves assisted with the preparation of this article.

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