Index

August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2020 J.E. Côté

ELECTRONIC HEARINGS

Recently, courts have experimented with the benefits of virtual hearings or appearances by electronic means. The current pandemic has augmented that move.

But the devil is in the details. We must remember the traditional forms of cheating, and note how electronic systems can enable those tricks. We need careful management, going far beyond assuring quality of picture and sound.

Once cross-examination has begun, we do not allow the witness’ counsel or anyone else to brief the witness, still less allow coaching or prompting the witness. In a courtroom, it is easy to prevent that. Counsel cannot see what goes on behind them, but the judge sees it all. If a witness testifies electronically from premises which the witness or friends control, no one sees or hears prompting or coaching. The camera shows only some of what is behind the witness, none of what is in front. There could be notes, signs, flash cards, or a professional teleprompter. The witness could be watching instantaneous texts on a screen. Simple hand signals or mouthed words would be easy. Some witnesses wear headphones, indeed may be encouraged to. But a coach can speak on the same line, giving oral instructions.

If witnesses can turn off their electronic connection to the conference, they can do so to avoid an awkward question and buy time. No one knows who or what disconnected, especially if the connection earlier seemed unreliable.

There are other dangers. In Alberta private conversations between leading counsel and junior counsel have been recorded by the media, who could also convey them to everyone watching TV. And the media have used zoom lenses on their cameras to photograph counsel’s private notes. Broadcasting those ruined cross-examination in one British Columbia hearing.

In Canada some years ago, reporters rifled through a wastepaper basket and then published private notes which had passed between tribunal members. That danger recently widened. The English Court of Appeal has just ordered a new hearing because after an electronic hearing was over, somehow the microphone remained undetectably on. Later the judge’s comment to her clerk about one party’s strenuous efforts to stall off the hearing were overheard.

And of course any electronic hookup must allow the judge to control who has the floor, and prevent interruptions.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.