Leg@l IT Conference: Judges Panel

[this post is one of a series covering the Leg@l IT Conference]

The Judges Panel was the highlight of the conference. I was looking forward to hear the views from the Bench concerning “Judicial IT”. The panel included Justice Bastarache from the Supreme Court of Canada, Justice Morrissette from the Court of Appeal of Québec, Justice Wery from the Superior Court of Québec and Justice Waxse from the US District of Kansas City.

Supreme Court of Canada

Justice Bastarache gave the audience many insights concerning the impact of Information Technology at the Supreme Court of Canada. In appeal, some cases are finding their way from the provincial courts to the highest court in various electronic formats, because all provinces do not necessarily use the same standards for electronic court documents. A working Group was formed in 2003 to look into these issues, with the ultimate objective of formulating a plan to improve the “IT-friendliness” of the Court, in consultation with the Canadian Bar Association and the federation of provincial law societies.

In making progress in the realm of Information Technology, the Court is careful, because there is a delicate tension between the need to have tribunals open and accessible and the right to privacy. For example, a court factum, when viewable from the Internet, may contain social insurance numbers, credit card numbers, or affidavit statements that could be considered injurious to a party. The Court is mindful of the need to strick the right balance between open and transparent access to court information and the right to privacy. Many options were considered to achieve this right balance, for example, to strick out the names of the parties and to purge documents of private information.

Justice Bastarache is confident in the capacity of the Court to find solutions to these problems: “Je suis convaincu personnellement que nous allons solutionner tous ces problèmes.” This summer, the Court is scheduled to install new equipment in the court room to make it possible for lawyers to plead electronically, for example, by using a Powerpoint slide deck (I guess that DeathByPowerpoint will reach the Court after all!). When the Court resumes its activities after the summer, these new capabilities should be available.

Justice Bastarache announced another change scheduled to occur in the Fall of 2007: factum and memoranda to the Supreme Courtwill become viewable and accessible by the public from the Internet, despite objections by some practitioners related to the preservation of copyright.

Court of Appeal (Québec)

Justice Yves-Marie Morrissette, cartesian as ever, broke down his presentation in three parts: IT and the judge, IT and the Court of Appeal as an institution and the impact of IT on the relationship between the Court and the public.

First, about IT and judges, Justice Morrissette noted that generational resistance impedes IT progress at the Court, because judges on the Court of Appeal (and elsewhere) are, usually, not as quick to accept new work methods leveraging Information Technology. Judges recognize however the increase in the individual ability to conduct online research. As judges increasingly use their computers, they become increasingly dependant on immediate IT support when something goes wrong.

Next, in terms of the institution of the court, currently including 21 judges and 8 supernumerary judges, Justice Morrissette noted the immense advantage of being able to solicit electronic comments on draft judgments as opposed to have a “paper river” betwen Montréal and Québec City where the Court sits (note: all appeal judges are solicited for comments before the final judgment is issued; not only the chosen panel of 3 or 5 judges). Justice Morrissette noted that the court room in Montréal is now ready for teleconferencing (“delocalized”) audiences, but the extent to which these facilities are used is limited by the willingness of panel members to use them.

Finally, in terms of the relationship between the public and the Court of Appeal, Justice Morrissette noted that the court’s judgments since 1987, practice rules, notices to the legal profession, etc. are increasingly easy to access.

Superior Court (Québec)

Justice Wery, Deputy Chief Justice of the Superior Court, similarly described the evolution of IT in the Superior Court, noting that in 1997, judges had no computers at all – computers started to be issued to judges in 2000 in successive waves. Justice Wery described a number of other improvements, including:

• Audiences are now digitally recorded and recordings are available to judges from their laptops;
• Visual teleconferencing is now possible in the court room; and
• Starting in September 2007, the “requêtes en gestion d’instance” will be heard by phone.

Justice Wery noted that IT appears to have, unfortunately, some negative impacts on the legal profession. Whereas a vitriolic letter used to take 24 hours to get typed and to be available for review by the lawyer before it was sent, thereby offering the opportunity not to send the letter; the 2007 lawyer is quick to fire off rude emails. As Justice Wery puts it, “soyez gentils par courriel – soyez méchant par courrier”! Blackberry’s are fine to make an appointment, but he noted that face-to-face meetings are usually much more efficient in letting lawyers find common solutions more quicly, and at a reduced cost to their clients.

On a final note, Justice Wery warned the audience about an annoying and increasing practice of lawyers: “case law dumping” – inundating the court with case law with little or no added value. While IT makes it easier to find relevant case law, it is not because case law is available that is necessarily is pertinent.