“In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. 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.”
-The Honourable Justice F.L. Meyers
Arconti v. Smith, 2020 ONSC 2782
During the COVID pandemic, personal injury lawyers, insurance adjusters and defence lawyers have claimed to have adapted.
We claim to have embraced e-discoveries, video conferencing, virtual mediations and settlement conferences because we have to. If we don’t embrace the technology, then business doesn’t get done.
It means a Plaintiff’s case can’t be pushed forward.
It means that an insurance defence lawyer cannot bill.
It means that an insurance company cannot clear another file off their desk to set targets and make quarterly economic reports for their stakeholders.
Video conferencing is easy, fast and effective. Not to mention that all of the parties don’t need to travel so not only is everyone saving travel time, but you dress pants and dress shoes are optional.
It’s a time saver.
It’s a money saver.
It’s effective.
It’s also safe during a global pandemic where all lawyers want to do the responsible thing and be a part of the solution and not a part of the problem.
This is why it’s so flabbergasting to lawyers at my law firm when defence lawyers continue to insist on in person meetings and in person discoveries.
Why?
Do they secretly want to get COVID and contract it to all of their co-workers, family members and loved ones who they come in to contact with?
Are they getting paid more for in person discoveries? When factoring in travel time, this may be true.
Are in person discoveries that much more effective?
Is their WIFI connection so bad that they are embarrassed?
Are they embarrassed by their backdrops for the video conference?
Are their children so uncontrollable that they can’t do an effective job if they are working from home?
Do they need to use the in person meeting as an excuse to get out of the house to escape their children, spouse, and domestic life?
Why are people insistent on in person meetings with complete strangers in the form of injured accident victims, many of whom are in an out of hospitals and doctors offices on account of their injuries (which is not where you want to frequent during a global pandemic) and sit in a tiny, poorly ventilated room for 6+ hours at close proximity speaking moistly.
Insurance Defence lawyers insist that the rooms are clean and tidy. They are. They also insist that all of the parties will wear masks. They do. So if everything sounds so good and so clean, then why not proceed as we did for decades and decades and proceed with more in person discoveries?
Lawyers have a greater duty to society. We as lawyers should focus on being part of the solution and not part of the problem. Rule 2.1-2 of the Rules of Professional Conduct states:
A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions.
As lawyers are we upholding the standards and reputation of the legal profession by putting our clients in harm’s way by dragging them out to in person discoveries during a global pandemic when there is clearly a better way?
As lawyers are we doing background health checks on our clients and those they live with to see if they are in the vulnerable patient population for those who COVID hits the hardest?
As lawyers are we advancing the goals of organizations and institutions (Red Cross, Hospitals, LHIN, Health Canada) demanding in person discoveries when the same thing can be accomplished by way of video conference?
There is clearly a better way around this which some are embracing, but others simply aren’t. The benefits of embracing the technology far outweigh the risks of getting COVID. The ease and cost effectiveness of embracing technology far outweigh the risks of getting COVID. It begs the question; why would a lawyer refuse an e-discovery in the first place?
Putting a client’s health in harms way by compelling an in person attendance when an alternative may be available also speaks to competence.Rule 3.1-2 of the Rules of Professional Conduct states “A lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.”
What our lawyers have seen during the pandemic is that there have been two camps of lawyers. Some lawyers have been super cooperative, understanding and flexible towards adapting to new approaches along with the new normal which is ever changing.
The other camp of lawyers have been inflexible, rigid, refused to embrace technology and refused to push forward and make things work as best they can. Their files have grinded to a halt because without embracing technology; it’s very difficult (almost impossible) to move personal injury cases ahead. What’s most troublesome about this came is that technology has been moving slowly in to our Courtrooms for decades. The Elmo Projector to show images to a jury has evolved in to television screens which has evolved to tablets. Transcripts are all digital and finding a particular word is as easy as a Google search. To quote the Honourable Justice F.L. Meyers once again:
“In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency”
Personal Injury Law changes each year and lawyers adapt.
The Insurance Act changes each year (or so it feels like it) and lawyers adapt.
Accident Benefits change each year (or so it feels like it) and lawyers adapt.
The Rules of Civil procedure change and lawyers adapt.
The practice of law has changed and lawyers need to adapt (or take a computer course).