Profession must rethink the link between proceedings formality and credibility: Perron
As provinces reopen from COVID lockdown, courts are now grappling with when hearings should be remote or in-person. Ontario Bar Association president Karen Perron says these questions allow the legal profession to rethink traditional approaches and find the right balance between virtual and in-person proceedings to ensure access to justice and a safe courthouse.
She says OBA members hope to see that family case conferences remain virtual. “This has been identified as an important access to justice issue because proceeding virtually increases the pool of available counsel and reduces travel time, allowing lawyers to serve more clients less expensively.”
Perron says that OBA members also identified that a virtual proceeding might better protect against power imbalances in mediation. “There’s a concern that the power to withhold consent to a virtual meeting may lead to more opportunities to take advantage of power balances. So, a presumptive virtual would better protect vulnerable parties.”
While the pandemic modernized the legal profession and virtual processes improved justice access, Perron says in-person hearings contribute to the decorum of court proceedings, enhance collegiality amongst bar members, and are more accessible to some self-represented litigants with little access to the required technology.
She says the legal profession must rethink some notions in the system, such as the link between the formality of proceedings and assessing credibility. “The OBA hopes that we can continue to move forward and take advantage of what works well remotely and find the right balance to consider the advantages and the disadvantages of both.”
Legal professionals are assessing pre-COVID court processes to consider reasons for past policy decisions, says lawyer and municipal councillor Douglas Judson. For example, it is easier for lawyers to determine the credibility of a court witness and have a better read on body language during in-person proceedings.
He says that people watching witnesses answer a question in the courtroom can lead to different outcomes and conclusions.
“That’s one example where we have to look back to the underlying purpose of why we used to do something, and if there isn’t a purpose, then maybe we shouldn’t do them that way anymore.”
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Law Times reported that judges are beginning to request that lawyers be robed for virtual hearings to hold on to the past legacy of decorum and solemnity. However, Judson says gowning for virtual proceedings is ridiculous.
“Why are we gowning for court in our own home?” he asks. “It already served almost no purpose before we had virtual court, but now it just looks like we’re playing dress-up for each other. It’s absurd that we continue to hang on to these ideas.”
He says the pandemic proved that the “rule of law did not fall apart because lawyers stopped wearing court robes.”
The Ontario bar is deferential, Judson says. “We take what’s thrown at us and work with it.” However, many legal associations speak up for lawyers and are crucial in the dialogue between balancing in-person and remote hearings.
“All these organizations serve a purpose and are important advocacy partners within the profession that can provide direct feedback to the ministry, the attorney general, the law society, and the judiciary.”