Alberta Judge Comments on First E-Trial

At the end of the reasons for judgment in Alberta’s first electronic trial in 1159465 Alberta Ltd. v. Adwood Manufacturing Ltd.the Honourable Mr. Justice A.W. Germain of the Court of Queen’s Bench provided a schedule to the reasons for judgment in which he reflects on the process and some of the legal issues to have cropped up. It’s at page 61 of the PDF of the judgment.

He comments on the admissibility of expert evidence, on the reliance on experts to assess damages and a surrebuttal expert in relation to the issue of damages.

His substantive comments are as follows:

1.1 At the current state of trial evolution in Alberta the definition of an Electronic Trial [“E-trial”] is one in which the majority of the documentary exhibits are filed before the court stored in a DVD, CD or ‘thumb drive’ (flash drive) format, and not on paper. A search engine, in this case Summation Software, was used to retrieve and display the exhibits.

1.2 For those within the profession and the bench who are committed to the reduction of paper usage and given the increasing ease with which those familiar with basic computer procedures can search, retrieve, copy, and view documents, this trial may be said to have been late in coming. For those worried about the preservation of the trial record, the risks of electronic tampering, and the mechanics of having a reasonable transparent process for appellate, public, and litigation review, there are cautionary concerns. However, in Alberta our policy as a court is to permit an E-trial at the request of counsel. Here, counsel requested that trial format, and it was accommodated by the Court of Queen’s Bench Civil Practice Note 14, August 30, 2007 (see also Alberta Court of Appeal Practice Note K, E‑Appeals Practice Note).

1.3 Despite this being the first E-trial conducted in Edmonton, it is not the first such hearing in which Alberta judges have participated. The Hon. Mr. Justice MacCallum presided over the Milgaard Inquiry in Saskatoon between February 2004 to 2007, in which the extensive paper trail generated by the many years of that litigation was rendered manageable by computer-based records. So too Mdm. Justice Moreau completed a trial in Yellowknife (Fédération franco‑ténoise c. Procureure générale du Canada, 2006 NWTSC 20 (CanLII), 2006 NWTSC 20, 150 A.C.W.S. (3d) 348, varied 2008 NWTCA 5 (CanLII), 2008 NWTCA 5, 2008 NWTCA 6 (CanLII), 2008 NWTCA 6, 440 A.R. 56, leave refused [2008] S.C.C.A. No. 432) in which paper management issues were rendered more manageable by documents being available in electronic form. In June of 2009 Mdm. Justice Kenny presided over a medical malpractice trial in Calgary, Alberta, Johnston v. Hader, 2009 ABQB 424 (CanLII), 2009 ABQB 424, 10 Alta. L.R. (5th) 299 and through the spring of 2009 Justice Park conducted a lengthy trial in Calgary where exhibits were primarily provided electronically. There are probably others.

1.4 This case was a commercial one. Most of the witnesses were computer literate and numerous of their records existed only in electronic form. In addition, there were extensive multi-page documents that had been marked by assessments, comments, witness notes, and which had been cycled several times through various hands. Counsel informed the court that the magnitude of the paper trail was such that they reviewed for the purpose of their litigation over 200,000 pages of records in various forms. Counsel reduced this intimidating mass to 2600 pages of records which became the primary exhibit [Exhibit 1]. One DVD disc filed as Exhibit 1 replaced eighteen 3-inch paper binders, stuffed with paper. This disc in turn opened to a directory in which all of the exhibits were given a personal identifying number – a sequence of letters and numbers. In this judgment I use the sequence of letters and numbers to identify the record to which I have referred. With access to the exhibit disc or a true copy of that DVD, anyone could open the same document and see it in the same way that they could inspect the paper exhibit book. Other exhibits also include evidence in electronic form. One disc of records was not indexed through Summation Software but consisted of PDF documents, indexed with a non-linked Microsoft Excel spreadsheet. Although not as sophisticated, this exhibit worked the same way, and just as well.

1.5 Once individual records were opened, the reviewer could fast-track through the pages utilizing the back and forth buttons in the computer program.

1.6 When Counsel put together their final agreed exhibit book for the trial they did not renumber the exhibits but continued to refer to the exhibits using the same consistent identifying descriptor (being a combination of letters and numbers) that they utilized in their exchange of information to one another. This worked for counsel and with the appropriate explanation worked for the court. To help make this judgment more transparent I give only one example of this naming system. A witness – Ian Murray – was the deponent in the plaintiff’s affidavit of records. All of the records he referred to in his affidavit were designated “IMAR” [Ian Murray Affidavit Records], followed by the number of the document. IMAR 459, would therefore mean that the document was assigned number 459 in Mr. Murray’s affidavit of records. As Mr. Murray produced the greatest number of records, modelling this descriptor in explanation catches the greatest number of documents.

1.7 Using unique but consistent identifiers for documents is critical to an efficient E-trial so that both counsel and the judge may efficiently and clearly identify whatever document is being referenced. The approach used to name electronic documents in this case certainly worked. I suspect that parties will obtain the greatest benefit where they adopt these naming conventions early in the litigation process.

1.8 In addition to the relevant business records, the plaintiff’s engineering expert required an Excel spreadsheet to explain his evidence. If printed this would have spread across the entire judicial dais. This Excel document was cross-linked to over 20 other spreadsheets. To follow the evidence a judge would have had to fumble through at least 20 of these lengthy sheets of paper. However, when viewed electronically, it was easy to follow and colour coded. Many of the cells had notes imbedded within them, these notes constituted a backup narrative supporting, explaining, and in some cases justifying the economic reasoning for the numbers expressed in the cell. I am unable to describe other than in nightmarish terms the perplexities this kind of information would have caused on a paper trail basis.

1.9 During trial, both exceedingly competent teams of lawyers quickly adapted to the electronic digital reality. On occasion there were electronic delays, however the odd momentary delay in finding and pressing the right computer icon to generate the exhibit on the screen pales in comparison to the clerk lugging a binder to the witness box, the judge reaching across the dais to grab a working copy, all of the parties flipping to the correct page, and then taking evidence on the exhibit. At the conclusion of the trial (a 12 day trial, but due to expanded sitting time per day the equivalent of about 15 typical days) counsel opined that they felt the E-trial evidence format saved about two weeks trial time, or 40%. That estimate of time saving appears accurate, and I will not speculate how long it would have taken the court staff to mark the paper exhibits.

1.10 Long after the trial has been concluded the technology staff at the courthouse will worry about protocols to safely preserve the exhibits, but it seems to me that as a simple starting point the copying of the discs and storing them in a backup facility is equally as safe as having one set of paper binders taking an entire file cabinet in a secure area for storage. Security against data manipulation will, of course, be enhanced where the evidence is stored using media that can only be ‘written once’, such as non-rewritable CD-ROMs or DVDs. Parallel records that document what is on the discs may also be helpful, perhaps a listing of what files are expected to be present on a disc, and the size of those files.

1.11 The assistance provided to me by Counsel was more than an equal offset to any slowness in getting used to using and referencing the electronic exhibits. Counsel provided me with backup discs of the exhibits for personal use. Using the present technology, the information on those discs must be copied into the Judge’s computer as the disc still has a mechanical component that prevents the computer from keeping up if the Judge attempts to follow the exhibits using the disc itself. That is probably a technological limitation which will eventually be addressed.

1.12 Since the “art and craft” of judging began, judges have made notes on working copies of exhibits. This tool was available electronically. Utilizing the available professional software, I was able to add “sticky notes” with a brief note to the key points raised by the exhibit. At the conclusion of the case reviewing the sticky notes electronically focussed me more quickly on the exhibit I wished to comment on then a paper trail would ever have done. Electronic “sticky notes” are also automatically time stamped, so one can have an accurate starting point, in time, to review the electronic transcript of the trial if a “sticky note” has lost its meaning. Rather then referring me to a binder to follow along in my own copy of an exhibit, counsel referred me to a page of their Summation Software index, and then I used the “find” command to get right to the exhibit. This worked exceedingly well and was much faster than fumbling through one of eighteen binders. Further speed improvement came with practice (both counsel and the court) during the course of the trial in terms of communicating and moving from one exhibit to another; this was encouraging.

1.13 The electronic process was also helpful after the trial, during the time to write the judgment, as I did not have to lug boxes of exhibit copies around – the relevant information was all in the memory of the laptop.

1.14 Counsel controlled the exhibit process from their own computer. The guarantee that their discs matched that which was filed flowed from their own litigation vigilance.

1.15 There is however one increased risk to an electronic trial: that an exhibit traceable only by opening that exhibit with an associated computer icon may get missed by the trial judge and its importance overlooked. The ‘exhibit agreement’ of counsel was silent on the ‘value’ of records that were not referred to either in evidence, or argument. The court’s proposal, that a document not referred to either in evidence or an argument could be inferred by the court to be unimportant, was generally acceptable to counsel as a pragmatic approach, but not to the extent that it limited appellate review. Instead, counsel agreed to prepare their written and oral argument mindful of the fact that an error could be made by a trial judge who did not have a record pointed out, and that omission could affect the outcome of the case. Both counsel recognized the risk and rather than create a blanket rule, agreed to address their argument in such a way that the key exhibit records were emphasized to reduce risk of an important exhibit being inadvertently overlooked.

1.16 The court would prefer (I think case management will evolve in these areas) that with multiple pages of exhibits, an exhibit that is not commented on by a witness or Counsel should lead to an inference of its relative unimportance. In this particular case Counsel were very fair in indicating that all exhibits were introduced on the basis that they were evidence in the case so as a trial judge I had to spend more time reviewing records that were not otherwise referred to than one might have hoped.

1.17 As the cost of this technology goes down and as judges and lawyers become more comfortable with it, we will have many more trials conducted in this format. E-trials will not be restricted solely to the mega-page commercial case. Even a case with 200 pages of documents generates 400 pages of photocopying to file with the court plus another 200 for each counsel. The technology needed to run an electronic trial is now as simple as the courts making available computer monitors into which counsel can plug their laptop computer in the court. Counsel will, of course, also require an ability to scan in hard copy documents to provide the electronic versions filed. I concluded the evidentiary portion of this case with a view that I had seen a glimpse of the future.

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Comments

  1. When I read “E-Trial”, I imagined something much cooler. Like witnesses testifying via webcam from home. When are we going to see that?

    Video remand has been done in the criminal law context for many years. The same is true of the taking of evidence from vulnerable witnesses via closed circuit television from another room.

    Some trial procedure statutes/rules already provide for this sort of eventuality in the civil or administrative law context. For instance, Ontario’s Statutory Powers Procedure Act allows for an electronic hearing.

    Here’s how the Ontario Landlord and Tenant Board explains the procedure:

    Under subsection 5.2(2) of the SPPA, a tribunal may hold an electronic hearing rather than an “oral hearing” (a face to face hearing, or a hearing in person). “Electronic hearing” means a hearing held by conference call, video conferencing or some other means of electronic technology permitting persons to hear one another. An electronic hearing should not be held unless all parties, the Member and the witnesses can hear each other at all times.

  2. What Germain J. has seen is not a glimpse of the future, but a glimpse of the present. Alberta Justice is slowly catching up to the 20th Century. Perhaps in time it will join the 21st.