Civil trials: It’s good to be back in court

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(June 3, 2022, 8:45 AM EDT) -- Anyone who has ever stood up in court knows there is a certain magic about the hours leading up to the start of a trial.

But there seemed to be an extra frisson of excitement in the air in April when I showed up at the Ontario Superior Court of Justice in Welland, Ont., for the first day of a personal injury trial, where I was acting for the insurer.

For the judge, counsel and court staff involved, this case marked our first in-person civil jury trial after two years of entirely virtual proceedings — all of which made for a slightly giddy atmosphere. There could be few more appropriate venues for the occasion than the town’s gorgeous old neoclassical courthouse, which doesn’t seem as though it has changed much since it began hosting trials back in the mid-1800s.

The only thing that might have looked out of place to a pre-Confederation visitor (or a pre-pandemic one for that matter) was the sheer amount of plexiglass in the building — erected to create individual boxes of space separating the counsel, clerks, witnesses, judge and jurors from one another. Some witnesses had trouble making themselves heard as a result, and while this was less of an issue for counsel, it can still be a little disconcerting to find yourself on the verge of screaming in the effort to ensure you are understood by the rest of those in attendance during oral submissions and examinations.

But even the new barriers and extra volume could not dampen the mood among the court staff and legal professionals, who quickly settled back into familiar routines.

All this time away from the physical space has deepened my belief that there is nothing quite like the feeling of a courtroom in action, especially once all the evidence has been entered and the members of the jury are sent out for deliberations, leaving behind nothing but the heavy air of anticipation.

I have to admit that my feelings about the return to in-person proceedings may be a little rose-tinted thanks to the verdict the jurors delivered, when several hours of corridor-pacing were rewarded by a decision in favour of my client.

Still, it’s not just the tradition and romance of the courtroom that weighs in favour of in-person proceedings for civil jury trials. Examinations and credibility assessments are more effective when everyone is in the same room, while the playing field is levelled for parties without access to technology.

Although the last couple of years have proved that there is a significant role for virtual proceedings to play in our justice system, I’m not sure there will ever be a fully remote alternative to the in-person jury trial.

The jurors in our case showed remarkable commitment to their civic duty in gruelling circumstances, maintaining admirable levels of engagement even as proceedings stretched beyond the initial threeweek estimate — finally concluding at the end of the fourth.

My only virtual trial experience during the height of the pandemic came before a judge alone, but I find it difficult to imagine that jurors would be able to match that kind of focus for eight hours a day while participating from home, removed from physical surroundings and people that help convey the gravity of their job.

Despite all the delay and confusion that came with it, the COVID-enforced closure of our courts does have an upside: by forcing us all to try out alternative methods of practice, it has injected some flexibility into a system renowned for its rigidity.

Civil trials will never look quite the same as they did before March 2020, and nor should they. My hope is that in the coming years, we will be able to settle on a hybrid process that incorporates the best elements of pre-pandemic and COVID-era practice.

Our own experience in Welland offered plenty of encouragement in that regard. While most of the witnesses appeared at the trial in person, four gave their evidence via videoconferencing software, including two who were forced to dial in at short notice because of COVID scares in their households. Marshalling witnesses has always been part of the regular shuffle of a trial, and it will be helpful to have the option of attendance by Zoom in appropriate circumstances.

There will always be some hiccups associated with documents and testimony presented electronically, but the technology issues that have traditionally plagued the court system are becoming fewer and farther between as everyone involved improves their comfort level. In our case, the transition occurred extremely smoothly, with the remote witnesses able to answer questions while referencing documents and exhibits filed via CaseLines.

In the days following the verdict, our judge also heard post-trial motions remotely, and there is no question that virtual proceedings have the potential to boost cost and time efficiency where in-person attendance is not strictly required.

Unfortunately, it does not look as though we will be able to completely rid ourselves of COVID-19 in the near future, so these kinds of accommodations could be needed for some time.

Following the three week jury trial and several post-trial motions, the Honourable Justice Gambacorta released her decisions regarding the Trial and the threshold motion. Justice Gambacorta found the Plaintiff did not sustain a permanent and serious impairment of an important physical, mental or psychological function as a result of the motor vehicle accident and, as a result, did not meet the threshold.

As a result of successfully defending the case and winning at Trial, Justice Gambacorta awarded our clients its legal costs of the action in the amount of $342,178.26.

A copy of Justice Gambacorta’s decisions can be found HERE.


Rohan Haté is a partner at McPhadden Samac Tuovi Haté LLP and practises primarily in insurance litigation. His practice is committed to all areas of personal injury litigation on behalf of his clients and their families who need guidance and support in navigating through the insurance claims process.

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This article was originally published by The Lawyer’s Daily , part of LexisNexis Canada Inc.

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