Mandate: The Committee shall continue to develop the College’s expertise and suggested approaches to the significant issues that will affect the administration of justice and the Rule of Law in the 21st century, including developments that will enhance the just, speedy and inexpensive resolution of disputes.   These efforts will include (1) gathering information including, but not limited to, from sources in Canada and the United States, and identifying “best practices” and evolving court rules, such as those related to emerging technology and the consequential  modifications to the court systems of both nations, particularly those related to the discovery and trial aspects of criminal and civil cases, and written and oral argument in the appellate courts; and (2) preparing research papers,  guidance documents, and continuing education programs, as appropriate, to assist Fellows in addressing the changes to the court systems, the evolving rules and emerging technologies.

Information and Resources regarding Mode of Hearings

Post pandemic, courts globally are developing rules and practices impacting the mode of adjudicative hearings. At least to some extent, virtual proceedings are here to stay.  The pandemic transition to virtualization forced some courts to modernize, impacted access by participants and created efficiencies.

While there may be trends to presumptive virtualization in many jurisdictions, courts retain discretion regarding mode of hearing.  Counsel may argue “good cause” has been shown or otherwise advocate for an exercise of discretion by the court regarding mode of proceeding: in-person, virtual or hybrid proceedings.  A multitude of factors may be considered by courts making such orders.  Those will vary case to case.

Counsel advocating for the most effective means of participation for their clients will consider the effect of the mode of proceeding on the litigants and other participants.  This document refers counsel to some North American resources discussing relevant considerations. These resources are applicable cross jurisdiction. That is, they are not court or jurisdiction dependent.

The Canadian Action Committee on Court Operations in Response to COVID-19 is a national leadership body co-chaired by the Chief Justice of Canada, the Right Honourable Richard Wagner, and the Minister of Justice and Attorney General of Canada.  In 2023, the Action Committee released two significant documents which may assist counsel and courts as they consider the use of virtual hearings, including strategies to mitigate the challenges those hearings present:

Virtual Hearings: Operational Considerations – Benefits and Challenges

Virtual Hearings: Checklist of Considerations

Additionally, The Advocates’ Society published The Right to be Heard: The Future of Advocacy in Canada in June 2021, addressing at III.2 “Modes of Hearing in Canada and Beyond.”

The National Center for State Courts (US) published a Remote Proceeding Toolkit in the fall of 2022 which many states have been building on as they release guidelines for remote proceedings.  Also available at The National Center for State Courts website is the 2023 publication Measuring Access and Fairness in Remote Court Proceedings. The document includes data and data collection considerations given the importance of understanding user experiences in remote hearings.

Committee Resources

Remote Proceeding Advocacy

This paper provides tips for advocates contemplating using technology in various pre-trial and trial contexts to make it most effective and persuasive. Updated in 2022.

Statement on Virtual Proceedings in the Civil Justice System

Discussion of the role, if any, that remote video technology might play in the administration of justice in civil justice (non-criminal) proceedings in the United States and Canada, including civil jury and non-jury trials, civil pretrial proceedings, small claims court proceedings and oral arguments on appeal of civil matters.

Overarching Principles Applicable to Civil Trials

This paper sets out eight basic concepts that the College regards as fundamental to the handling of civil trial matters in the United States and Canada, including when and how technology should be utilized in pre-trial, trial and appellate matters.

Conducting Remote Hearings by Use of Remote Video

The pandemic impacted the ability of clients, lawyers, and judges to come together to resolve pretrial disputes. This explores how to plan and conduct virtual pretrial proceedings in a manner that increases the likelihood of an effective, efficient, and just virtual proceeding.

Conducting Nonjury Trials by Use of Remote Video

A guide for judges and lawyers outlining the factors to consider when whether determining whether to use remote video technology to conduct virtual nonjury trials.

Conducting Remote Video Depositions and Examinations for Discovery

These Guidelines endeavor to focus the attention of the Bench and Bar on issues that must be considered when conducting depositions and examinations by remote video.

Conducting Appellate Arguments by Use of Remote Video

A summary of issues that should be addressed by counsel and the court in preparation for conducting a remote video appellate argument.

Issues to be Considered When Preparing for and Conducting a Civil Jury Trial During the Pandemic

This paper provides detailed guidance for lawyers and judges considering whether civil jury trials are appropriate during the pandemic and if so, how to safely conduct such a trial while optimizing the quality of the presentation.

Ongoing Constitutional Challenges to the Criminal Justice System as a Result of the Pandemic

A discussion of constitutional rights and statutory frameworks implicated by the criminal justice system's slowdown and use of virtual proceedings during the COVID-19 pandemic.