Embrace technological changes brought on by COVID-19 shutdown

By LegalMatters Staff • The coronavirus lockdown has forced lawyers out of the courtroom and onto the video screen and the legal profession should embrace the necessitated shift in business practices, says Ontario critical injury lawyer Joseph A. Cescon.

Social distancing has left courts closed for all but urgent matters so lawyers have to rely on phones, email and video calls to keep files moving, says Cescon, partner at McLeish Orlando LLP. 

“This could be a great time for legal innovation and there are plenty of smart lawyers and tech people who are looking to enhance how we do things,” Cescon tells LegalMattersCanada.ca. 

He says the pandemic is changing the way people work and these developments can be beneficial.

“We want normalcy in our personal lives. We want to be able to go to a restaurant, do those social things. But as far as returning to conducting a legal practice in the ‘normal’ way do I want to go back? No,” Cescon says.

“Let’s use this as a means to drag the legal system into this decade. It’s time.”

‘Continue to adapt’

He says lawyers should “continue to adapt and incorporate the technology and general flexibility” forced upon the profession by COVID-19.

“It has made us look at how we’re practising the law,” Cescon says. “An example is the willingness of judges to deal with matters by phone, which some of them were already doing pre-pandemic.”

He says the limited access to courts has resulted in matters such as examinations for discovery or pretrial conference being handled by phone or video conferencing, which has led to a “massive increase in productivity.”

“I am finding we are able to move cases along much more quickly. In other situations, you can wait weeks or months just to get a response,” Cescon says. “People are doing things differently and it is working.”

New way of practising

He says the pre-COVID-19 way of practising law was not always efficient. 

“We have cases throughout Ontario and wherever the plaintiffs reside, that’s where we had to travel to do the discoveries in person,” Cescon says. “Now, we have been able to quickly switch to a video discovery format. Suddenly everyone is able to do it in the comfort of their office.

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“It’s better for everyone. Instead of worrying about coordinating a multitude of calendars, all of a sudden there’s more availability,” he adds.

Cescon says he isn’t surprised technology could benefit the profession – McLeish Orlando has long embraced new innovation.

“Our managing and senior partners built those functions into our practice years ago because it represented efficiencies. It made it easier for us to work from anywhere,” he says.

New reality

The structures in place allowed his firm to adapt quickly to the new coronavirus reality, Cescon notes.

“Lawyers working from paper on the day all physical contact was suspended had a big problem,” he says. “They somehow had to figure out how to digitize and adapt while at the same time managing a new work environment.

“We had all the tools in place,” Cescon adds. “The shift, at least in terms of how we worked, was imperceptible.”

That doesn’t mean he wouldn’t prefer to have courts running normally, he says.

“But as far as the day-to-day change in our practice goes there was minimal impact, no learning curve,” Cescon says. “I just kept on and benefitted from all of our efficiencies to serve my clients.”

He says there will undoubtedly be naysayers who prefer to return to the established way of doing business and cites Arconti v. Smith as a case where the plaintiffs were opposed to a videoconferencing examination.

Earlier this month, court was told the plaintiffs opposed videoconferencing, arguing they needed “to be with their counsel to assist with documents and facts during the examination; it is more difficult to assess a witness’s demeanour remotely; the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment, and the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.”

Ontario Superior Court Justice Frederick L. Myers rejected the argument.

‘It’s 2020’

“In my view, the simplest answer to this issue is, ‘It’s 2020’. We no longer record evidence using quill and ink,” he writes. “We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

Cescon says he realizes some lawyers prefer to “look their witness in the eye from across the table and really get a sense of them” during discovery but doubts it is necessary.

“Do I think the examination is going to be any different if they are sitting two feet from me as opposed to on a video screen? I don’t. Their evidence is going to be the same,” he says, noting there are advantages to video conferencing.

‘Creates focusing effect’

“The entire virtual environment blocks out everyone else who would ordinarily be there. Instead of having 20 other counsel there, you are looking directly at the witness. The active speaker is the only person you see so it creates this focusing effect that I think actually enhances the process.” 

Cescon says the legal profession should not only embrace new technology but learn from other jurisdictions that have already found success implementing it.

“It represents massive savings not just in terms of dollars but in human capital as well,” he says.

“I don’t see how you could thrive if you don’t adapt. The unfortunate reality of COVID-19 is there’s likely to be a second wave. Are we going to get shut down again? It literally is a situation that we don’t have a framework for but it is certainly possible. You have to be prepared for that.”