October 31, 2021

By Martha Petryshyn & Mark Lahn

In early 2021, Weilers associate Martha Petryshyn conducted a five-day trial using the video conferencing software Zoom in the Ontario Court of Justice. Conducting an entire trial virtually was a new experience for the team here at Weilers.

In this article, we would like to share our recommendations for both lawyers and participants in Zoom proceedings so that your Zoom trial can be a success.

Preparing For Trial: Assembling Electronic Documents

Unlike an in-person trial, there may be changes to the documents that need to be served with the court that you need to be aware of.

During the trial management process, decisions will likely be made regarding how documents will need to be served in advance of trial. For example, the judge may request both a physical copy and an electronic copy to be filed with the court. Obtain information early such as what email address to send the documents to so that you are prepared in advance of the filing date.

When compiling electronic documents, make it as easy as possible for individuals to navigate the document. This could include:

• Adding bookmarks;
• Creating a hyperlinked table of contents; and
• Hyperlinking cases to CanLII.

We recommend leaving the bookmarking and hyperlinking to the end of the process so that if documents change as you are compiling them, you do not have to duplicate work.  Leave plenty of time to serve these documents so that if any technical issues arise, you have plenty of time to file the materials.

Preparing Witnesses

One of the advantages of a Zoom proceeding is that the judge has a close-up view of parties and witnesses as they are giving testimony. However, without the right preparation, witness testimony will not come across properly to the court.

Before trial, counsel will need to request the Zoom access link from court services and distribute the connection details to witnesses. A run-through of all witnesses should be conducted several weeks before the trial using the same devices that will be used for the trial.

Witnesses should be instructed that:

• They need to have a laptop or desktop device equipped with a webcam and microphone;
• Their background should be free of any distracting items;
• Lighting should be adjusted to ensure they are well-lit. The witness should not sit with a window directly behind them as it may be difficult to see them.
• They need to be in a quiet location with a stable internet connection;
• No other individuals may be present during their testimony. They may have to pan their camera around the room to show the court that they are alone;
• They should have a bible available if they wish to be sworn in for their testimony, otherwise, they will be affirmed;
• They are not permitted to reference any materials they could not in a courtroom; and
• Counsel may be instructed to leave an unnatural pause after they have answered the question, so there may be a delay after they answer.

One of the most important items on this list is a stable internet connection. With finite court time, testimony may take significantly longer when questions or answers need to be repeated due to video freezing or audio cutting in and out.

If a witness does not have a reliable internet connection at their home, an alternate location for them to conduct their testimony should be located. It’s important to recognize that even professional witnesses testifying from their offices may not be equipped with internet capable of delivering video properly. This is why doing a run-through in advance of trial is so critical.

During Trial

On trial days, arrive early to get the workspace set up and connected to the Zoom meeting. Before connecting, do a quick video and audio test in the settings page of Zoom and perform any updates to the software.

On one occasion, we found that our webcam was crashing Zoom as the court proceedings began for the day. Once updates had been performed, this issue was resolved. Having a backup laptop to connect on standby is likely a good idea if possible.

Presenting Exhibits

When presenting documents to witnesses, you will need to share your screen so that your witnesses can see the document on their device. We recommend only sharing the application which displays the document rather than selecting the option to “share entire screen”. This ensures that unwanted documents or icons are not visible to the court.

If possible, having an assistant available to display exhibits while the lawyer is conducting the examinations is ideal. This allows the lawyer to focus on asking the questions and documents can be more quickly pulled up by another individual.

Standard Courtroom Etiquette Still Applies

Above all, when conducting a trial using Zoom, the standard courtroom rules and etiquette still apply. This includes:

• Recording of the proceedings without consent is strictly prohibited;
• Individuals should refrain from getting up and walking around on video;
• Parties must not speak over one another and should address the court properly; and
• Standard courtroom attire should be worn.

In Summary

Thanks to thorough preparation, our first trial conducted entirely virtually went relatively smoothly. While technical challenges were encountered along the way, all parties involved were patient as this uncharted territory was explored.

Conducting a trial over Zoom has interesting challenges. With the right preparation and testing before trial, these unique quirks of Zoom proceedings can be easily overcome. Just remember to turn off your cat filter.