Page 16 - ILCO March 2016 Newsletter
P. 16
A Paperless Courtroom:Embracing the Use of Electronic Trials
By James Bunting, Chantelle Spagnola and Anisah Hassan
Davies Ward Phillips & Vineberg LLP
The efficiency and seamlessness of the paperless courtroom copies of the trial documents, examination briefs and briefs
was facilitated by a trial protocol agreed to by all parties of authorities. In particular, documents were viewed in the
which documented the processes and procedures to be used. “GoodReader” application, which provides a similar look
For example, all parties agreed to, and ultimately did, prepare, and feel to a physical document and contains extensive
serve and file their evidence-in-chief by way of affidavit, which annotation and editing functionality (including the
provided for considerable time savings in a trial involving ability to highlight and create mark-ups of documents).
evidence of a technical nature heard from 17 fact witnesses
and six independent expert witnesses. The use of affidavits in The use of iPads was highly effective for dealing with such a
this manner resulted in a substantial “front-end loading” of complex case in real-time, and eliminated the need for parties to
the preparation required for trial, and was critical in allow additional time for printing and assembly. It also allowed for
allowing the trial to be completed in only four weeks. the use of technological tools to navigate the vast evidence more
efficiently. This made it possible to easily navigate the entire case,
While viva voce direct examinations were still conducted which in paper could have filled several rooms, on a single iPad
for each witness, the duration of each examination was the size of a thin notebook.
considerably reduced.
Finally, the parties used a cloud sharing service supplied by Davies
At the suggestion of counsel for Mr. Schad and Athena, and to upload and share materials. For counsel using iPads, the iPads
as approved by the Court, the parties also used the “chess were set up to easily synchronize with the cloud sharing site so that
clock” method for allocating time during the trial. Under they could be fluidly updated as new files were added. This made
this method, parties are allocated a fixed amount of time in the act of sharing files highly efficient, as there was no need to
which to present their case. This places a premium on good deliver physical USB keys (as the size of many of the documents
advocacy, forcing parties to hone in on the issues of central and materials made sending them by email impossible).
importance to the case. The Canadian Competition Tribunal
is one of the first adjudicative bodies in Canada to have CONCLUSION
employed this method, and the method is recommended as a
Best Practice by the Advocates’ Society. While use of the While the advantages of e-trials are particularly evident in large,
chess clock method is not new, it has rarely been used electronic document-intensive cases like Husky v. Schad, they
in the Ontario Superior Court. can make any size of trial more efficient and cost-effective.
While conducting an e-trial may seem like a daunting proposition,
In the Husky v. Schad case, the total amount of time allotted successful execution involves the same essential skills as a
for the trial was divided between the parties based on
percentage allocations that were negotiated between them conventional trial: organization, preparation and effective
in advance. Pursuant to the trial protocol, time was debited communication between the parties and the Court. While e-trials
from a party’s total allocation for each of opening submissions, may currently be the exception in Ontario, from the perspective of
direct examinations, cross-examinations, re-examinations, the authors, the efficiency and seamlessness with which technology
closing arguments, and any motions lost during the course can be incorporated into litigation means it is only a matter of
of the trial (for all motions brought during trial, the total time time until these practices are widely adopted. Indeed, at the
used for the motion was debited entirely from the time of conclusion of the Husky v. Schad case, the trial record (which
the party that lost the motion). includes thousands of documents and thousands more pages of
testimony, in the form of affidavits and transcripts) is stored on the
While the plaintiff initially expressed concerns that the court file on a single USB key the size of a thumb.
negotiated time allocations might be insufficient, all
parties concluded their case with time remaining. This article is reprinted with the permission of the
This trial also prominently featured the use of tablet authors. It will be published in Corporate Litigation
Journal, Volume 14, Number 3, Federated Press.
technology, as both the parties and the Court made use of
popular iPad tablets. iPads were used in place of printed 2) The only exception was the use by each witness of a hard copy version of his affidavit during
the course of his examination.
1) Mr. Bunting, Ms Spagnola and Ms Hassan are all lawyers in the Litigation 3) See e.g. the decision of the Canadian Competition Tribunal in B-Filer Inc. v. The Bank of
Department at Davies. They acted together with Kent Thomson, the Head Nova Scotia, [2006] C.C.T.D. No. 36 (QL).
of Davies’ Litigation Department, as counsel to the defendants Robert 4) B-Filer Inc. v. The Bank of Nova Scotia, [2006] C.C.T.D. No. 36 (QL).
Schad and Athena Automation Limited. The authors would like to thank
the exceptional clerks, litigation support personnel and assistants involved 5) The Advocates Society, “Best Practices for Civil Trials”, online: (June 2015) at p. 5
in this matter for their tireless efforts in bringing this electronic trial to life. In particular, enormous thanks are due to Debra Bilous, Tanya Barbiero Best%20Practices%20for%20Civil%20Trials%20-%20June%202015.pdf>
and Michelle Lee for keeping counsel organized and the trial
6) Notably, the chess clock method was mandated by the Joint Trial Protocol in the
running smoothly. highly publicized cross-border trial in the matter of Nortel Networks Corporation
(Re), 2015 ONSC 2987.
16 LAW CLERKS’ REVIEW, MARCH 2016
By James Bunting, Chantelle Spagnola and Anisah Hassan
Davies Ward Phillips & Vineberg LLP
The efficiency and seamlessness of the paperless courtroom copies of the trial documents, examination briefs and briefs
was facilitated by a trial protocol agreed to by all parties of authorities. In particular, documents were viewed in the
which documented the processes and procedures to be used. “GoodReader” application, which provides a similar look
For example, all parties agreed to, and ultimately did, prepare, and feel to a physical document and contains extensive
serve and file their evidence-in-chief by way of affidavit, which annotation and editing functionality (including the
provided for considerable time savings in a trial involving ability to highlight and create mark-ups of documents).
evidence of a technical nature heard from 17 fact witnesses
and six independent expert witnesses. The use of affidavits in The use of iPads was highly effective for dealing with such a
this manner resulted in a substantial “front-end loading” of complex case in real-time, and eliminated the need for parties to
the preparation required for trial, and was critical in allow additional time for printing and assembly. It also allowed for
allowing the trial to be completed in only four weeks. the use of technological tools to navigate the vast evidence more
efficiently. This made it possible to easily navigate the entire case,
While viva voce direct examinations were still conducted which in paper could have filled several rooms, on a single iPad
for each witness, the duration of each examination was the size of a thin notebook.
considerably reduced.
Finally, the parties used a cloud sharing service supplied by Davies
At the suggestion of counsel for Mr. Schad and Athena, and to upload and share materials. For counsel using iPads, the iPads
as approved by the Court, the parties also used the “chess were set up to easily synchronize with the cloud sharing site so that
clock” method for allocating time during the trial. Under they could be fluidly updated as new files were added. This made
this method, parties are allocated a fixed amount of time in the act of sharing files highly efficient, as there was no need to
which to present their case. This places a premium on good deliver physical USB keys (as the size of many of the documents
advocacy, forcing parties to hone in on the issues of central and materials made sending them by email impossible).
importance to the case. The Canadian Competition Tribunal
is one of the first adjudicative bodies in Canada to have CONCLUSION
employed this method, and the method is recommended as a
Best Practice by the Advocates’ Society. While use of the While the advantages of e-trials are particularly evident in large,
chess clock method is not new, it has rarely been used electronic document-intensive cases like Husky v. Schad, they
in the Ontario Superior Court. can make any size of trial more efficient and cost-effective.
While conducting an e-trial may seem like a daunting proposition,
In the Husky v. Schad case, the total amount of time allotted successful execution involves the same essential skills as a
for the trial was divided between the parties based on
percentage allocations that were negotiated between them conventional trial: organization, preparation and effective
in advance. Pursuant to the trial protocol, time was debited communication between the parties and the Court. While e-trials
from a party’s total allocation for each of opening submissions, may currently be the exception in Ontario, from the perspective of
direct examinations, cross-examinations, re-examinations, the authors, the efficiency and seamlessness with which technology
closing arguments, and any motions lost during the course can be incorporated into litigation means it is only a matter of
of the trial (for all motions brought during trial, the total time time until these practices are widely adopted. Indeed, at the
used for the motion was debited entirely from the time of conclusion of the Husky v. Schad case, the trial record (which
the party that lost the motion). includes thousands of documents and thousands more pages of
testimony, in the form of affidavits and transcripts) is stored on the
While the plaintiff initially expressed concerns that the court file on a single USB key the size of a thumb.
negotiated time allocations might be insufficient, all
parties concluded their case with time remaining. This article is reprinted with the permission of the
This trial also prominently featured the use of tablet authors. It will be published in Corporate Litigation
Journal, Volume 14, Number 3, Federated Press.
technology, as both the parties and the Court made use of
popular iPad tablets. iPads were used in place of printed 2) The only exception was the use by each witness of a hard copy version of his affidavit during
the course of his examination.
1) Mr. Bunting, Ms Spagnola and Ms Hassan are all lawyers in the Litigation 3) See e.g. the decision of the Canadian Competition Tribunal in B-Filer Inc. v. The Bank of
Department at Davies. They acted together with Kent Thomson, the Head Nova Scotia, [2006] C.C.T.D. No. 36 (QL).
of Davies’ Litigation Department, as counsel to the defendants Robert 4) B-Filer Inc. v. The Bank of Nova Scotia, [2006] C.C.T.D. No. 36 (QL).
Schad and Athena Automation Limited. The authors would like to thank
the exceptional clerks, litigation support personnel and assistants involved 5) The Advocates Society, “Best Practices for Civil Trials”, online: (June 2015) at p. 5
in this matter for their tireless efforts in bringing this electronic trial to life.
and Michelle Lee for keeping counsel organized and the trial
6) Notably, the chess clock method was mandated by the Joint Trial Protocol in the
running smoothly. highly publicized cross-border trial in the matter of Nortel Networks Corporation
(Re), 2015 ONSC 2987.
16 LAW CLERKS’ REVIEW, MARCH 2016
