By Dermot Nolan
There is nothing virtual about real justice. But virtual justice may be the new reality. And we should be worried.
The digital trap had already been set before COVID-19 tripped it. Suddenly, everything is remote. Personal contact is out; distancing is in. We have the technology. Who needs real people? We’ve got screens.
Convenient, to be sure. But dangerous.
A recent internal report by two members of the powerful and little-known committee of judges and lawyers that makes the Rules governing lawsuits in Ontario threatens to ensnare the whole civil justice system in the trap.
Going to court is something most people never do. But they always know that they can if they have to – to enforce their rights, resolve their disputes or hold people, institutions, corporations or governments accountable.
The right to a hearing in person in a court of law is a foundational and hard-won right that is not to be trifled with. It has been nourished, defended and refined for centuries. It gives the community a reassuring and trusted framework for fairly resolving disputes among its citizens – and it gives its citizens the comfort of knowing that they can always have their day in court.
The report includes some alarming recommendations which, if adopted, could turn that day in court into a day on a screen.
At the heart of the report is the iconoclastic proposition that the judicial system can be improved through “a paradigm shift away from in-person oral hearings.”
Away from oral hearings? What would Cicero say?!
There is no doubt that the system needs an overhaul. Some procedures are astonishingly antiquated; resources are stretched and misdirected; administrative practices are inconsistent; and scheduling remains an intractable nightmare.
The report suggests many long overdue improvements which recognize the intrinsic value of electronic tools in simplifying the logistics of litigation. They are sensible adjustments that will save cost and time in connection with such practical matters as serving and filing documents, procedural steps, scheduling, general court administration and deployment of resources. They are operational reforms that will undoubtedly streamline the system and help it run much more efficiently.
But in their zeal to fix the existing inefficiencies, the authors of the report (a Toronto Judge and an Ottawa lawyer) threaten to blow up the foundation – when all they need to do is clean up the house.
The authors of the report are less focused on Cicero than on what the Chief Justice of the Ontario Superior Court recently told a group of seasoned litigators, namely that: “If there is one positive that is going to come out of this (COVID-19) crisis [it] is that we have been forced, and the Ministry (of the Attorney General) has been forced, to accelerate its plans on moving to electronic hearings and also electronic filings and we cannot go back.”
The writing may indeed be on the wall for the courtroom as the go-to place for civil disputes except in exceptional circumstances. Among the report’s more troubling recommendations are changes that would;
- repeal the principle that evidence and argument should be presented orally in open court;
- make the oral presentation of evidence and argument in open court the exception rather than the rule;
- restrict the automatic right to a trial in civil lawsuits; and
- restrict the automatic right to question an opposing party in person in a lawsuit.
Most Ontarians, (to paraphrase Joni Mitchell), won’t know what they’ve got ‘til it’s gone.
Online communications and presentations work brilliantly in many other applications. Although not optimal, you can usually get pretty much everything you need from an online seminar, a TED. talk, or a Zoom meeting – even sophisticated surgery can be performed remotely.
But the touchstone of litigation is the adversary system, a unique and rigorous process designed to extract truth from hard evidence and in-person testimony by subjecting it to scrutiny that is up-close and personal and by testing it by vigorous examination and presenting it with persuasive oral advocacy. Without an in-person oral hearing of the evidence and arguments from all sides, powerful hallmarks of credibility can be lost in translation to the camera and the process becomes unreliable and vulnerable to manipulation and distortion.
From time immemorial, the courtroom has been the arena where the fight for justice is waged. It is hot in there – and it should be. There the combat is face-to-face and hand-to- hand. The participants are forced out into the open for all to see and hear. They look each other in the eye, feel each other’s heat and challenge each other’s truth. The impartial decision maker sizes them up in real time and plain sight. Their advocates get to use all their power and skill to make their case and the public gets to watch and shine the spotlight on the whole proceeding to ensure its integrity.
The dangers of a careless drift towards digital dystopia can best be illustrated by comparing the differences between live theatre and cinema.
Live theatre takes place in real time on a stage. A trial takes place in real time in a courtroom. In both places, the participants are real; you can fully observe them and everything – and everyone – around them. The players have no escape. They put themselves out there to the naked eye, exposed for you to observe – and judge – with all your senses and all your intelligence. The tension is real – and anything can happen.
Cinema takes place in virtual time on a screen. Unlike a trial in a courtroom, nothing is real. Most of the participants are unseen, deliberately hidden. You can look only at what the screen allows you to see. What is really going on in the room is unknown. It is an exercise in manipulation, an artificial construct designed to present a false picture in a frame. There is no heat.
Both live theatre and cinema demand the suspension of disbelief. A trial demands the opposite. Disbelief is required, not suspended – everything is subject to proof. And in-person evidence is the principal, indispensable instrument of proof.
The Rules committee needs to get real and stay real. What you see on a screen is never real – it simply can’t be. What you see in person is always real – it simply can’t be otherwise. The screen can never be a substitute for a live person; it will always be second best.
And when it comes to Justice, second best is just not good enough.