Silver Linings

Our first post of the new year is written by Tania Perlin B.A., L.L.B. from the law firm of Tania Perlin, Barrister & Solicitor. Ms. Perlin is also a certified Mediator with the Ontario Mandatory Mediation Program, a public speaker, and a litigation wellness coach.

It’s hard to believe that ten months have passed since the world entered into a strange and unprecedented time.

It felt and continues to feel as though we are all in some sort of vortex, where we are living our lives in a bubble. We are no longer able to see friends, go out to eat, travel, and most importantly, to live without fear. Despite the sun shining, there is a feeling of desperation as we do not know when this is going to end and whether we are ever going to get back to “normal.”

However, as the saying goes, there is always a silver lining, and I would invite the reader to consider that in order to survive this difficult time, we must look deeper and find that spark of light and goodness that will collectively, at some point, pierce the veil of darkness and illuminate this world in the brightest of lights.

New processes

For many people who are going through the legal system during the pandemic, it’s hard to imagine any light at the end of the tunnel. Courts are closed and working on a limited virtual platform. However, the good thing is that the legal system is slowly adjusting to creating a more accessible process, for example by conducting virtual hearings, and being more accommodating to litigants.

I have heard a judge mention that pets and kids are welcome in their virtual courtroom. This is a welcome reprieve, as lawyers struggle to do their work with kids and pets in the background. Not to mention the partners who are also working from home, and maybe even from the same kitchen table.

Virtual hearings are not always a perfect solution, and can have their downsides for litigants, some of whom lack of access to reliable internet, or do not have a high comfort level with technology, to name a couple examples. But the positive aspect of these times is that courts are finally moving towards more accessible and accommodating processes that can save a great deal of time and money for litigants.

Many lawyers and paralegals have said that they can attend three different courts in one day, without leaving their office or living room. They no longer have to wait a whole day for a five minute hearing, or travel several hours to get to court.

All this efficiency results in cost savings to the clients who no longer have to pay for a lawyer or paralegal to wait in court or travel. This translates into hundreds of saved dollars and magically, suddenly makes legal service somewhat more affordable and thereby more accessible.

Despite many litigants being very well-versed in legal process and the law, having a lawyer provides a more comprehensible presentation in court, and reduces the stress and anguish of self-representing. Litigation is hard enough on the parties. Having to learn the rules of civil procedure, the applicable law, and then presenting the case, adds a very heavy burden to an already unmanageable situation.

New perspectives

Another silver lining to virtual hearings is that judges are given the opportunity to see litigants “up close.” Of course they see litigants in court, but the litigant is a distance away and at times not easy to hear or see. By having Zoom or other virtual hearings, judges can have a better understanding of the human being in front of them. It’s like having a conversation with someone sitting across from you, as opposed to having a formal dinner where the person is sitting at the other end of a table.

The legal profession has had to endure a great deal of change in a matter of nine months. It was like a gestation period, and now the legal system is emerging as an infant, learning to see and function in the world in a new and hopefully better way.

Change is always hard. We all felt that the system needed to change but it was hard to start the necessary process. It’s like knowing that you need to do renovations in your home, but nothing will get done until the roof leaks or the paint starts to chip off the walls.

It has been the same for the litigation process. These strange times have pushed us to create online platforms for documents submissions, and to facilitate virtual hearings. We are constantly evolving and learning new technology and better ways to have new and improved access to justice.

I believe this experience has humbled all of us; lawyers, judges, and litigants alike, and has made us more tolerant and compassionate. Everyone understands when a zoom session stops working because of an internet issue, or not being able to hear someone on a teleconference call because the cell phone they are using suddenly looses connectivity. Many lawyers understand when the other side is having technology issues, and try to help them rather than take advantage of the situation.

One example comes to mind. I was conducting a virtual mediation. It settled and parties were exchanging minutes of settlement. The Plaintiff’s counsel could not open the document and she had tried various methods to access it. Everyone got together to help figure out the issue. The IT person from the Defendant’s law firm was called to help. It was a collective effort and the problem was solved within ten minutes.

New hope

This is what litigation should be in my view. Its adversarial nature does not have to involve undermining and negative behavior. Winning a case should always be based on law, evidence, and merit, with respect towards all parties and the court. Anything else does not have a place in our courts or the legal system.

We have all learned to be kinder and more accepting, since for the first time we are all in the same boat.

My hope is that when these strange times are over, that we will get back to a better normal, where litigants will have the choice of an in-person attendance or a virtual hearing; where lawyers will have the opportunity to offer their clients savings because they no longer have to travel to or wait for hours in court; where everyone will co-operate in order to resolve a dispute, rather than use the system to prolong the pain of a drawn out litigation process.

The good news is that we are very close to my hope becoming a reality. No longer do we need to dream about it, but just continue to ride the wave of a brand new and evolving legal system.