'There needs to be some understanding that lawyers are human beings with families.'
As more people connect with colleagues, family and friends over video-chat outlets amid the pandemic, studies have emerged that these videos are causing exhaustion, and lawyers are voicing similar distress for virtual court proceedings. The Criminal Lawyers Association wrote two letters to the Chief Justices of Ontario raising concerns about Zoom fatigue and the pressure on lawyers who are also parents.
The CLA President, John Struthers and women’s committee co-directors Stephanie DiGiuseppe, and Michelle Johal wrote a letter to the chief justices in February 2021. The letter highlighted the lockdown, school closures, the strain on lawyers’ mental health, and concerns that lawyers were leaving law practice, particularly criminal defense, because of the enormous burden to continue court proceedings and other pandemic pressures, including having children home from school.
“Litigation is high-intensity work. There needs to be some understanding that lawyers are human beings with families, with our personal issues in the background affected by the pandemic just like everyone else,” DiGiuseppe says.
She says judges generally do a good job showing compassion, but the CLA has heard about cases that cause concern. “Decision-makers have to take many factors into account, and we appreciate that, but we want to make sure that this is one of the factors they are thinking about when making these decisions.”
Mental health lawyer Anita Szigeti was recently ordered to attend a virtual tribunal hearing in an end-of-life ventilator case from 8 am-8 pm, and she says that lawyers are fed up with long-term Zoom hearings. “With the surge, the stress, our family caregiver obligations; how is it human with Zoom fatigue to expect us to do either back-to-back weekend hearings or eight to eight? It’s ridiculous.”
Szigeti says a 12-hour contested emotional virtual hearing should not even be a factor. During cross-examination, presenting witnesses and making legal submissions, she says counsel uses a lot of brain energy to focus on evidence and formulate questions in their client’s interests. “It’s impossible for counsel to professionally and competently represent their clients under such circumstances.”
After Szigeti spoke with Law Times, the tribunal agreed to her submission requesting it shorten the virtual hearing, despite opposition from opposing counsel, she says.
When health officials placed Ontario in a third lockdown in January, the CLA sent a follow-up letter to the chief justices focusing on the strain parents face and children’s mental health. DiGiuseppe says the CLA also sent the note to the senior regional judges, the Consenting Capacity board (CCB), and the Ontario Review Board (ORB).
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She says emerging data about the impact of the lockdown measures on Ontario children shows how having a supportive parent versus a parent unable to support their children in the pandemic affects children’s mental health.
While DiGiuseppe cannot comment specifically on the directive in Szigeti’s case, she says the long hours were an indication that the CLA needed to engage with the CCB and ORB about considering lawyers’ mental health when making decisions.
The point of the letter was to express that “we understand it’s a pandemic, the courts are under a lot of pressure, but you can’t reasonably expect us to act in a way that’s detrimental to our children at this time,” DiGiuseppe says.
Caroline Mandell, legal communication and litigation consultant at Mandell Coaching, says Zoom fatigue is a real observable phenomenon, and people’s physiological wiring makes long Zoom conversations stressful. “We’re not used to having that experience, and our brains interpret it as a threat.”
Mandell says Zoom has its benefits and limits, and people need to be thoughtful about minimizing the latter and maximizing the former. “For example, if you don’t have to drive to court in a snowstorm to argue your motion, then you’re removing a significant source of stress, and in that situation, the stress you may feel using the Zoom platform is comparatively not nearly as significant.”
Mandell says that Stanford University has produced research over the past year on why Zoom is draining, and people feel exhausted at the end of a call. For example, Zoom requires making eye contact with people on our screens and constantly looking at a very close distance triggers a stress response because having an individual up close looking straight in the eye is unfamiliar.
While the effects of Zoom are not specific to Szigeti’s tribunal case, Mandell says one can envision how fatigue would be multiplied and magnified in a very long hearing involving high stakes and emotional issues.
Ninety-three per cent of communication is nonverbal, and Mandell says Zoom interactions deprive people of nonverbal cues the brain naturally uses to process situations. “You have to be paying more attention to cues like subtle changes in facial expression, and tone of voice and that is draining on our ability to pay attention to other stuff. It weighs on our cognitive load trying to make up for the missing nonverbal cues.”
She says it is important to limit the time spent on Zoom. “An eight or 10 or 12-hour hearing is far from ideal, and if it’s necessary, people need to understand that it’s not the same as sitting around a table for that length of time.”
Mandell says lawyers can mitigate Zoom fatigue by alternating between sitting and standing when making submissions. “If you have the flexibility, it’s good to stand up while making your submission. It frees up your hands, and hand gestures are part of that nonverbal communication that help people understand what you’re saying.”
Lawyers can also be farther from their computer screens to avoid looking too closely at other people and triggering a fight or flight instinct or turn off the self-view in their Zoom settings, she says. “The difficulty with that {self-view] is you never know what’s showing up on the screen if you have it off.”
Mandell says the neurobiological effects of Zoom are critical to account for how the courts schedule hearings, take breaks, and how people set up their configurations.
She says a recent study also revealed that Zoom fatigue is worse for women because they tend to be more critical of their appearance after a period of staring at themselves. However, she is hopeful changes will be made to video platforms in the long run because of the growing fatigue concern.
“Perhaps we can expect that future iterations of Zoom and other video conferencing platforms will account for some of these problems.”