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| Julius Melnitzer |
“I was very surprised by how well it worked, so much so that the recent move back to live trials as the default is, in my opinion, a step backward,” Kwinter said. “The convenience and time and money saving in virtual trials is really incredible.”
Kwinter’s views stem from his first virtual trial, which took place in the winter of 2022, a gruelling four-week judge-alone endeavour with a number of chronic pain causation issues whose hard-fought nature followed on the insurer’s refusal to offer a single penny in settlement over seven years of litigation or during the trial and that resulted in a 216-page seven-figure award (Fraser v. Persaud, 2023 ONSC 1449) that exceeded the policy limits.
What makes Kwinter’s opinion even more interesting is that he wasn’t expecting a trial conducted virtually in its entirety.
“I thought it was going to be a hybrid, so I came home from Florida,” he recalled. “After two weeks it was clear the trial was going to be all Zoom, so I headed back south and did the last two weeks gowned up in Florida in front of my computer screen.”
Kwinter’s first reaction was not positive.
“I never thought I could do this, because I’m lucky if I can even turn on my computer,” he said. “I wondered how the hell this could really work effectively. But it did.”
Fortunately for Kwinter, he had his colleague Sylvia Guirguis, a 2015 call, on hand as co-counsel. But it wasn’t an easy road for her either.
“This was my first trial of any kind,” she said. “I’m decent enough with computers and used to doing virtual discoveries. But there were challenges, such as pinpointing the judge on the screen and screen-sharing.”
What eased the way somewhat was that the plaintiff’s case was fully developed.
“I went through all the medical records and made a summary chart that contained the dates of each consultation, a description of what occurred, and where to find the particular record,” Guirguis said. “That allowed us to search our files and cross-reference, using two monitors, to the joint document brief.”
Because the Superior Court had not yet launched CaseLines, the cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings, Justice Lucille Shaw allowed time at the commencement of the trial for counsel and court staff to sort through how documents, witnesses and exhibits would be managed.
“I relied on the co-operation and efforts of counsel to file all documents electronically in a manner that made them manageable, including with the use of proper indexes and bookmarks in the large PDF joint document brief,” she stated in her reasons for judgment.
Kwinter also had concerns about virtual cross-examination.
“I wondered how effective I could be cross-examining a face. But it turned out amazing, because I could read the faces of witnesses, to the point of seeing the wrinkles in their forehead. I could also see the judge up close and gauge her reactions to questions and answers.”
Lawyers aside, virtual appearances also worked very well for the witnesses — particularly the expert witnesses.
“The family doctor, who had retired but was a key witness, was skiing in Collingwood with his family when he got the call from us, so he came off the hill, testified for a few hours and then went back to skiing. Had he been required to testify live, he would have had to drive in from Collingwood to Brampton, sit around for who knows how long and maybe stay overnight.”
And dead time was minimal.
“As soon as we finished one witness, we were on to the next, and the witnesses were much more willing to come forward when they realized they didn’t have to leave their offices,” Kwinter said. “Not only would the trial have gone longer had it been live, but the parties saved travelling and waiting time costs.”
Preparing witnesses was easier and more efficient by Zoom as well.
“It was so easy to line up witnesses for preparation that at one point we dealt with five witnesses in four hours,” Kwinter said. “And preparing by Zoom is a much better way than the old way of preparing by phone, because you can see people’s reactions on screen, which gives you a real dress rehearsal.”
Which is not to say that there weren’t some bumps in the road.
“There was a technical issue — the screen freezing and the like — almost every day,” Kwinter said. “And of course, some witnesses do your case more justice in person. On the whole, however, things worked very well.”
Opposing counsel Sam Sandhu of Aviva Trial Lawyers did not respond to a request for an interview.
Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by email directly at julius@legalwriter.net or at his website, www.legalwriter.net.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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