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By Tony Poland, LegalMatters Staff • Recent innovations in legal technology have improved the practice of law and those who fail to embrace change do so at their own peril, says Toronto-area employment lawyer and mediator Stuart Rudner.
“This is really Advocacy 101. Your goal as an advocate is to persuade someone of your position, whether that person is a judge, an arbitrator or mediator,” says Rudner, founder and principal at Rudner Law. “You do that by putting together a clear and concise argument and then backing it up with evidence. Make it as easy as possible so your audience can follow your arguments.
“There are some lawyers who tend to be conservative and some who just want to bury their heads in the sand and hope this goes away and they can go back to practising the way they did before. Our judiciary has been very clear in saying that is not going to happen,” he tells LegalMattersCanada.ca.
He points to CaseLines — which is being used by courts in Ontario — a user-friendly cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings, as an example of technology that has been embraced by judges.
In Bowman v. Uwaifo, Ontario Superior Court Justice Frederick Myers lauded the benefits of the program.
‘Advocacy is the art of persuasion’
“Imagine a lawyer going into court before the pandemic and not numbering the pages of the motion record. That is the equivalent of not using CaseLines today,” he writes. “As advocacy is the art of persuasion, is it not obvious that efforts by an advocate to assist the judge to focus on the argument and see the evidence will increase the chances of comprehension by the judge and therefore the persuasiveness of the presentation?
“In my view, and subject always to judges’ discretion in their own courts, this branch of the court in this region should no longer accept oral submissions from counsel who do not use CaseLines any more than we would have accepted an unnumbered motion record or an untabbed book of authorities before the pandemic,” Myers adds. “There are ample resources available to teach counsel how to use CaseLines if anyone needs assistance. Clients and the court are entitled to expect and require counsel to be technologically competent to attend court remotely.”
In a recent judgment, Justice Mohan D. Sharma notes it is not enough to simply employ emerging technology.
“CaseLines is a powerful technological tool. With it, both counsel and the judiciary can take advantage of its many features to save time and resources,” he writes. “Like me, many of my colleagues seek to maximize its functionality. But to do so, counsel are required to use CaseLines properly which requires greater effort on their part.
“I appreciate that the use of CaseLines remains relatively new for counsel and the Court. There are inconsistencies in how it is used.”
Resources are available to guide lawyers
Sharma states there are resources available that explain how to use the program effectively.
“Had these steps been taken by counsel in this case, the time required to dispose of this time-sensitive injunction motion would have been reduced. Other cases similarly waiting for disposition could have been dealt with sooner,” he writes. “Counsel must accept responsibility in assisting the Court, and the consequent delays on the administration of justice when they fail to do so.”
Rudner says it is in every lawyer’s best interest to heed Sharma’s words.
“He makes a great point: this hearing could have been far more efficient if the documents had been uploaded properly,” he says. “You can just sense the frustration. By not following the guidelines and not using the technology, counsel made it difficult for him to find anything.”
Rudner says his type of technology “can save time and save clients money but it has to be used properly.”
Risk losing your audience
“In the past, judges may have had to hunt through piles of documents; that is completely inefficient. The current equivalent is making them scroll through hundreds of pages, or click back and forth trying to find the right back. If you do that, you are losing your audience, which is exactly the opposite of what you’re trying to do,” he says.
“One of three things can happen. Either your audience will just give up and not bother looking at the documents that you want them to see. Or your audience is going to always be behind you so when you are talking about your second point, they are still trying to find the document from your first point. Of course, then they are not really listening to your argument. Or, lastly, they will constantly interrupt you so they can find a document, which will interrupt your rhythm and diminish the persuasiveness of your argument. Any of those are bad results and are really recipes for disaster.”
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Rudner says as a young lawyer he “was taught that when you are in court, you should always be watching the judge.”
“You should take note of the fact that they are making notes of your argument or also take note of the fact that they look completely lost,” he says. “If you see that they are flipping through pages trying to find something, you can ask if they need to be directed to the material in question.”
He says because the pandemic has led to virtual hearings, it is not always possible to tell if the judge is having trouble navigating documents.
‘You are missing an important opportunity to make your case’
“You need to make sure that your judge knows exactly how to get to whatever you are trying to point them to,” Rudner says. “So, obviously, by not using available technology or not using it well, you are missing an important opportunity to make your case.”
He says technology allows lawyers to embed a bookmark or hyperlink in their brief that will instantly take the judge to the document they are discussing.
Rudner gives an example of a case he mediated where the brief included a link to video evidence that allowed him to see the incident in question.
“Imagine: instead of reading that ‘the employee assaulted his direct supervisor’ and wondering what evidence they have, I was then able to click on an embedded video and watch the assault take place”. That was tremendously persuasive, and allowed me to tell the other side they had a real issue to deal with,” he says. “There are so many ways you can use this technology to make your documents more compelling and easier for a trier of fact to follow. I really encourage people to not just tolerate new innovations, but really embrace them, use them to their advantage.”
‘There are many lawyers who are really stuck in their ways’
Of course, he says there will always be those reluctant to change.
“There are many lawyers who are really stuck in their ways, who do not want to adapt to the use of new technology or, frankly, are scared,” Rudner says. “I really encourage our team and anybody else to not just grin and bear it but to take advantage of it. You can be far more persuasive if you use technology to its full capabilities.
“Your mediation brief in 2022 does not have to look the same way it did in 1995.”
He says “you really have to make an effort to learn how to use it to the best of your advantage.”
In the long run, the time and effort it takes to learn new technology can have a positive impact, says Rudner.
“I encourage people to remember that if I’m acting as a mediator, I am essentially your advocate in the other room. If you make it easy for me to understand your position and your argument, I can be a lot more persuasive to the other side. You will have me as your advocate rather than as someone trying to understand what you are saying and wondering how you can prove your case,” Rudner says. “In that scenario, you will not get as good a result as you could have, since you will not convince anyone of the strength of your case. That is not a win.”
