Over the last year, Anthea Chan, lawyer at Bogoroch & Associates LLP, has done many virtual discoveries and while there was a learning curve, she has adapted her practice to make the process smoother.
“Virtual discoveries are here to stay, so you just have to tweak it,” she says of the small changes she has made as she develops best practices for a virtual setting.
She describes appearing and remaining engaged being most difficult in a virtual discovery. For example, maintaining eye contact with the camera while notetaking is near impossible, so she will sometimes forego the note-taking during important lines of questioning and rely on an observing lawyer or student to assist with note-taking or opt to request the transcripts afterwards.
On the other hand, in terms of witness engagement, Chan says that it’s been the most difficult to overcome — but she’s found a way to compensate. “Having that virtual barrier is definitely a challenge when it comes to keeping the witness engaged and having the questioning flow more naturally,” she says. “I find when I’m looking at the camera versus the screen and it appears I’m looking at the person more directly, I’m getting better, more direct answers.”
Another adjustment Chan made is to minimize her Zoom window to be closer to her web camera, “so I can appear to look more directly at the witness versus having a full screen where it looks like your eyes are wandering.”
Ultimately, overcoming the webcam and virtual barrier is a process of trial and terror, “Everyone has to work with their own equipment, but I found that helpful for myself,” she says. “You want it to look as natural as you can.”
Unlike in-person discoveries, the Affidavit may not be readily available before the witness in a virtual setting, and the shared screen feature has been very helpful in this regard. By marking the exhibits she intends to refer to prior to the discovery, these she can referred to easily through share screen “so there’s no ambiguity” for the witness and is captured clearly by the court reporter.
The greatest challenge in a virtual discovery is when there is the need to use an interpreter. Conducting discoveries through an interpreter often disrupts the pacing of questioning, and leads to people speaking over each other. When she’s in the situation, she found it paramount to shorten her questions and ask yes/no questions whenever possible, “especially when an interpreter or witness needs a clarification, the shorter the phrase and more straightforward the question, the less back and forth there will be.”
Breaking up longer sentences and pausing much more than an in-person setting adjusts for any audio delays, and “makes room for that translation to take place and make sure nothing is lost in the translation, we’re not speaking over each other, and the witness is able to understand everything clearly.”
In-person discoveries are not entirely behind us. When there is an interpreter involved and for individuals without the technology at home, meeting in person will likely remain preferable when we can resume in-person meetings. “Virtual discoveries have given us a new way to save time, which otherwise would have taken 2-3 hours to drive to out-of-down discoveries,” Chan says.
Furthermore, “given the nature of litigation these days with the number of parties involved and the parties not necessarily being in the same geographic locations,” and virtual discoveries have been very effective in accommodating witnesses who were not physically in Ontario or even in Canada. Virtual discoveries have been easier to coordinate and schedule, Chan notes, especially in the cases of out-of-town parties, or individuals who do not feel safe to leave their home during the COVID-19 stay home order and concerns for health and safety.
While there are many benefits to virtual discoveries, it is important to be mindful of access to justice concerns for individuals who do not have the equipment and technology for virtual discoveries. Before our communities return to the “pre-pandemic norm” of in-person meetings, local court reporter offices may assist in filling this technology gap where witnesses can attend individually in a safe and distanced manner to access a laptop and reliable internet.
"If we look at recent decisions on people asking for adjournments, rescheduling or even forcing discoveries, such as Arconti v. Smith, 2020 ONSC 2782, parties are being ordered to proceed with virtual discovery and virtual mediations,” Chan says. “The way the courts are deciding these issues is a clue that we’re headed towards a much more virtual practice in the future.”
Proceeding with litigation steps virtually, such as discovery and medication, is an important solution to move our civil cases forward in a timely manner. Many civil cases settle before trial, and keeping cases moving to discovery and to mediation are ways to “give plaintiffs the finality and access to justice they deserve.”
This article was originally published in Canadian Lawyer.