Virtual or face-to-face? It depends…

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Tim Wilbur. Source: LinkedIn

“Most lawyers would answer that it depends,” writes the columnist Tim Wilbur in Canadian Lawyer magazine.

The fact is that the range of procedures that lawyers must apply vary greatly from case to case.

Before the pandemic, virtual procedures were the exception rather than the rule. To take advantage of the virtual—or even the telephone—it had to be demonstrated that the sound administration of justice justified it.

However, the burden of proof today rests on the face-to-face: anyone who requires the parties to be present in person in a case must demonstrate that the face-to-face makes the difference.

The presumption has changed

So while the pre-pandemic presumption was that all legal proceedings had to be in person, that’s less true today, Wilbur continues, citing business lawyers who say it’s job to represent clients well, it doesn’t matter if it’s done face-to-face or virtual.

For many business lawyers, who have sophisticated clients and need to deal with complex issues, commercial litigation lends itself perfectly to virtual proceedings.

In contrast, in criminal and family law, many courts have returned to in-person proceedings. “Judges are fed up with Zoom proceedings that are inappropriately informal, and where witnesses testify while driving, or record proceedings in secret,” writes Tim Wilbur.

face-to-face

Recently, the Barreau du Québec delivered a plea for face-to-face trials.

The pandemic will have illustrated the range of issues raised by virtual appearances in criminal proceedings. In this context, Bill S-4 seeks to impose the principle of remote trial.

The Bar advocates against this approach, judging that “criminal trials held in person are beneficial from the point of view of procedural safeguards (and) the administration of evidence”.

Assessing the credibility of a witness and that testimonial evidence must be assessed “in nuance and detail”, the Law Society is concerned about the impact that virtual proceedings may have on the proceedings.

The virtual

On the other hand, the legal world invests more and more in the virtual world every day. Founded in 2020, Decentraland, located in the Metavers, is gradually increasing its appeal to the legal world.

You can take up residence there, open a business… and practice law.

This is what the Toronto firm Grinhaus Law has just done, which has established its household near Decentraland University. Its founding and senior partner, Aaron Grinhaus, teaches cryptocurrency and blockchain law at Osgoode Hall Law School, University of Toronto, and specializes in blockchain contract law.

But these are extremes, continues Tim Wilbur. “Most lawyers today agree that to determine the credibility of a witness, it is not necessary to see him in the flesh.

And the benefits of virtual access to justice are immense. Zoom has cut a one-day divorce from five to six hours to 45 minutes, saving clients thousands of dollars per court attendance.

The answer to the question “Virtual or in person?” » will therefore be « It depends », for quite a while yet.

In the meantime, if face-to-face is necessary, we must explain why, he concludes.

We want to give thanks to the author of this post for this remarkable material

Virtual or face-to-face? It depends…


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