Tsalamandris, Andrea --- "Paperless litigation: Adaptation during COVID-19" [2020] PrecedentAULA 53; (2020) 160 Precedent 4

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PAPERLESS LITIGATION

ADAPTATION DURING COVID-19

By Judge Andrea Tsalamandris

In mid-March 2020, the requirement that we all work from home whenever possible during COVID-19 restrictions created a quandary for courts – either stop hearing cases or run trials remotely, via video link. For courts already embracing paperless trials, a quick adjustment was possible and within a very short time remote trials were running efficiently. For courts still working with paper it took more time to adjust to the new way of doing things, with consequent adjournments and delays in the hearing of cases.

For now, it feels like paperless litigation is the new norm. As social distancing restrictions begin to ease in some jurisdictions around Australia and we look at re-opening the courts to accommodate in-person attendances, what aspects of paperless litigation will be retained?

Below are my top five picks for what courts are most likely to keep.

1. ELECTRONIC SUBPOENAS

In personal injury damages claims, a defendant will often seek access to the plaintiff’s medical, hospital, banking and tax records. Most of these documents are held by the addressee in electronic form. However, in answer to a subpoena, those electronic documents must be either printed or transferred to a USB or CD, and then sent by post or courier to the court’s registry. The solicitors for each party then must attend court to inspect those documents and take copies of them. Transferring and accessing electronic documents in this way results in wasted time and costs.

As an interim measure during COVID-19 restrictions, the County Court of Victoria (CCV) enabled electronic documents to be provided to the court’s registry via the internet-based storage platform OneDrive. From August 2020, the CCV will have an online portal which will enable an addressee to securely deliver documents to the court, in electronic form. The parties will be able to inspect and copy such documents online, while preserving a party’s ability to raise a legal objection to the production and/or inspection of such documents.

This initiative offers convenience to addressees who hold electronic documents and are required to answer a subpoena. It is also expected to result in cost savings for the parties as it will eliminate the need to physically attend the court registry in order to inspect and copy the subpoenaed documents. In the long term it will also dramatically reduce the storage space required by a court’s registry.

2. ELECTRONIC COURT BOOKS

Since mid-2019, the Common Law Division of the CCV has required parties to file electronic court books prior to trial, dispensing with the need for paper copies. This already established familiarity with the use of electronic court books has enabled judges and parties to readily adapt to hearing trials remotely during COVID-19.

One benefit of an electronic court book is that it is accessible from anywhere, making it possible to work on a case in the office, chambers, home, or when travelling. It is no longer necessary to transport a multitude of lever arch folders, as all the documents are accessible on a computer, laptop or iPad. For those judges and counsel who still prefer paper copies the electronic version of the court book can be readily printed.

Another benefit is that the text of an electronic court book is searchable. It is essential that the court book contents have been converted from PDF to Optical Character Recognition (OCR), thus obviating the need to search through countless pages to find a particular reference or word in the tendered documents or transcript. Instead, by conducting a simple text search, within an instant you can see where that word appears and in what context throughout the document. This can assist in the preparation of a case for trial, especially when preparing a chronology, opening or closing submissions.

I consider the key to transitioning to paperless trials to be the availability of a reliable application, with which to annotate the electronic court book and transcript, in the same way that you would a paper court book – enabling the writing of notes in the margin, post-it notes, bookmarks and highlighting of text in different colours. This is also essential for counsel to prepare for an effective cross-examination.

It is important that the PDF software used for court books is intuitive and easy to use. There are numerous products available, some of which are dependent upon the particular device being used. I have trialled a few different products, including Adobe Acrobat Pro, Drawboard and PDF Expert. Initially I found annotating and navigating within electronic court books slow and clunky. However, within a short period of time, it became my new mode of working and I cannot imagine going back to paper.

Given that electronic court books have been used by most courts during COVID-19 restrictions, I suspect that paper court books will become things of the past.

3. TOUCH SCREEN DEVICES FOR WITNESSES

In addition to an electronic court book for the judge, there should also ideally be a touch screen device within the witness box. This enables the witness to be shown particular documents electronically and thereby eliminates the need for paper documents in the courtroom. The judge’s associate can navigate the pages of the court book as identified by counsel so that the witness can instantly be taken to a particular document. If the witness’s screen is linked to other large screens in the courtroom, members of the public can view the relevant document at the same time.

It is also possible to show the witness video footage which can be freeze-framed at a relevant point in time, and if required the witness can make any necessary annotations on the screen. A screenshot can then capture the image with the annotations and it can be electronically tendered, for all to access.

During COVID-19 restrictions this capability enabled remote witnesses to annotate a map or photograph on the screen, which was then able to be electronically tendered as evidence.

The cost and paper savings to parties who no longer need to mass produce folders of court books are enormous, and there are obvious benefits to the environment too.

4. VIDEO LINKS FOR DIRECTIONS HEARINGS AND PROFESSIONAL WITNESSES

For several years, video links have been available for witnesses appearing from interstate and overseas. However, they were rarely offered to practitioners or locally-based witnesses.

During COVID-19 restrictions, all court appearances were via video link. This included pre-trial directions hearings, trials and the delivery of judgments. Despite occasional issues with sound and visuals, for the most part the connection was reliable and of high quality. The CCV’s Common Law Division quickly adjusted to hearing cases remotely, including electronically sharing exhibits and viewing video surveillance. However, after a few months of conducting cases in this way, I think most of us, judges and practitioners alike, had Zoom^[1] fatigue and were anxious for face-to-face hearings to resume.

I consider the time and costs saved by practitioners appearing at directions hearings from their home or office makes a compelling case as to why this new practice should be retained for most pre-trial directions hearings post-COVID-19 restrictions. There will, of course, be exceptions to this. For example, I consider an in-court appearance would be justified if there is concern with regard to a practitioner’s non-compliance with court orders. The gravitas of the courtroom can be lost over video, and a judge’s concerns as to pre-trial management may be better conveyed and appreciated when the practitioner appears in person.

For professional or expert witnesses, the time spent travelling to a courthouse, finding and paying for parking, then waiting to be called, is frustrating. This can all be avoided if they are called from their location via video link. Therefore I also expect that, going forward, most professional witnesses will give evidence remotely. For medical practitioners hesitant about taking time out of their busy practice, the convenience associated with giving evidence via video link may be one less reason for them to be reluctant about involvement in personal injury litigation.

5. ELECTRONIC JURY TRIALS

Although at the time of writing there are few (if any) jury trials running, once social distancing restrictions ease these too will resume, but I expect with some differences. There is likely to be some aspect of empanelment which is done remotely, with the use of video technology to avoid the need for a mass gathering of the jury pool. Once empanelled, it is likely that some jury trials will run with jurors using iPads instead of pen and paper.

In the last couple of years several criminal matters have proceeded in the Supreme Court of Victoria as paperless jury trials. In February 2020, I presided over a paperless civil jury trial in the CCV. The case involved a claim by a pedestrian who was struck by a car while crossing the road. In this case, each juror was given an iPad on which exhibits were uploaded throughout the course of the trial. Each juror could make their own notes and annotate the documents.

In paperless jury trials, each juror is given a court-issued iPad, with their own login and password. The iPads have restricted access to permitted exhibits and relevant court documents only – to state the obvious, there is no access to the internet, including Google or online Solitaire. The jurors can only access the iPad when they are in court or the jury room. At the end of the trial, the iPads are wiped by each juror, ensuring that the contents are never accessed by anyone else.

To date, all jurors have been offered a folder with paper exhibits, but no juror has taken up this offer. Even older jurors were comfortable using the application, often after receiving some practical assistance from more tech savvy co-jurors.

Judges, parties and jurors have all reported favourably on these electronic jury trials. The most significant benefit noted by all users has been the considerable court time saved: the uploading of documents is almost instantaneous; navigating between exhibits in court is faster than moving between folders of paper exhibits; and witnesses are often more concise in their description of matters, a result of everyone being able to readily see what is being described by the witness.

CONCLUSION

Due to COVID-19, digital changes which could have taken years to be adopted and embraced within the court system occurred within a matter of weeks. When the number of active COVID-19 cases reduces and we are able to resume in-person trials, the courts are bound to have less paper in them than ever before. Hopefully we will all learn to be comfortable with paperless litigation, and appreciate the cost efficiencies it brings to clients and the more user-friendly work style it provides for everyone in the courtroom.

Judge Andrea Tsalamandris is Head of the Common Law Division in the County Court of Victoria (CCV) and Chair of the CCV’s Technology Committee. Prior to her appointment to the bench in 2016, she was a long-standing member of ALA.

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^[1] The CCV used Zoom for civil trials. Other courts used WebEx and Teams. I am sure the screen fatigue levels were the same, irrespective of the platform used!