Litigation’s future

For litigation practitioners, it means they will have to master how to become effective advocates in a new digital era.

Beyond acceptance that some degree of remote work is here to stay, they will have to become accustomed to evolving workflows and finding better ways to manage an abundance of data and electronic evidence, as an upcoming series of CBA webinars will delve into. Lawyers will also have to lean more heavily on litigation technology -- sometimes at the courts' urging.

In August 2020, the Ontario Superior Court of Justice first started testing the use of CaseLines, a cloud-based platform for sharing and storing documents for both in-person and remote court proceedings. Before long, it expanded its use to commercial, estates and family matters in Toronto.

"It's an example of where simple, off-the-shelf technologies can make a huge difference," says Colin Stevenson, a partner at Stevenson Whelton LLP in Toronto. He adds that it is a far better way to go about modernization than past attempts by Ontario "to come up with complicated systems that would do everything, but then failed because they were too complicated and expensive."

"We should be looking at other, similar innovations that are readily available off-the-shelf," says Stevenson.

Lately, Ontario has been looking to British Columbia. In 2016, BC launched the first civil resolution tribunal in Canada to assist people in settling their vehicle accident, condominium and small claims disputes in the province. Ontario's attorney general Doug Downey has contracted with BC to use its online dispute resolution system and have it rolled out at the Landlord and Tenant Tribunal around October to test it. But the biggest problem, Stevenson says, remains that the province has struggled to implement an effective online scheduling system for the courts.

While BC's Court of Appeal has mandated e-filing, the BC Supreme Court hasn't, leaving it optional, even though it has the larger caseload. "The government and the judiciary were actively considering CaseLines in 2019 and didn't take it up," says Kate Gower of Gower Modern Law in Victoria. "They maintain a position of saying they're agnostic to technology."

Gower has been using both CaseLines and REDI in her work and wants to see the justice system incentivize them to use technology, by launching pilot projects geared at herding parties through virtual proceedings. By way of example, she proposes using chambers applications over two hours as a testing ground. Parties that agree to participate could benefit by seeing their cases move up the list faster. 

Gower also hopes that the appointment of Shannon Salter, who successfully ran BC's Civil Resolution Tribunal, to the position of deputy attorney general, will help speed up some of the changes that need to happen in the province.

While the courts continue to modernize, lawyers will have to get up to speed on using online tools, such DocuSign and Closing Folders, a transaction management program. It's what clients expect now.

"That has revolutionized the way we do our corporate work, particularly the closing work," says Paul Saunders, chief innovation officer and a partner at Stewart McKelvey in Halifax. The pandemic "definitely diminished the resistance we would have typically seen," Saunders says. "That's going to keep happening, because it benefits the clients."

However, it will take more than adopting case management tools to keep with the times for litigation teams. There are troves of digitized data out there that could help lawyers figure out which arguments are likely to be the most persuasive in their pleadings, or which cases are most likely to succeed at trial. Legal teams will have to learn to work with data scientists and mine the case law to predict case outcomes.

"Legal is still miles behind lots of other industries," says Paul-Erik Veel, a partner at Lenczner Slaght LLP in Toronto, adding that his firm relies on products like predictive legal analytics and other data-driven decision-making to assist with litigation. "When we looked at the kind of tools that exist, the reality is that there aren't that many in Canada that can do the types of data analytics to help predict outcomes. In this space, Blue J Legal is the one that comes to mind."

Blue J offers analytic software for tax and employment law, which Veel uses.

"They have done exactly the thing that lots of other industries have done, which is to gather a lot of data, you organize it in an appropriate way, you run it through various algorithms, you see what factors matter, and then you use those to build a model to try to predict what happens in future cases," Veel says. "They're great, but their products are limited by domain."

Veel hopes that other datasets will be collected going forward to build analytic tools for other legal fields. Clients expect lawyers to outline the probabilities of winning or losing a case. At the same time, he acknowledges that the legal market is challenging due to the profession's inherent conservatism. He thinks firms will start building their own models, like the one his firm built to predict leave outcomes at the Supreme Court of Canada.

"You can think of it as a first pass, or a gut check, or a second opinion," Veel says. "We all have our biases, and one that lawyers have is that they can fall in love with their case. If I've lost at the Court of Appeal, and the client says they're thinking of taking it to the Supreme Court, but I run it through the model and it says your 'slam dunk' case is down at three percent, the model plays the role of a consult with a colleague."

AI algorithms are already increasingly common in contract reviews to extract terms for due diligence, says Saunders. 

"I think some of the Toronto firms who are consistently doing far larger due diligence projects would be using those tools more, but it is something on our radar," Saunders says.

Susan Wortzman, a partner at McCarthy Tétrault LLP in Toronto, is the firm's e-Discovery and information management practice lead. She says that firms can also build technology solutions in-house. Her firm commissioned a vaccine verification service for clients.

"We worked with a team of lawyers, technical analysts and developers to build a technology solution to help employers implement a vaccine verification program," says Wortzman. "It was complicated because, apart from the technology, we had to deal with the privacy and the security."

Wortzman says the tool allows employers to collect and track their employees' vaccination status confidentially. It gave "peace of mind to employees because they knew their personal information was not going to their employers," Wortzman says. "We launched this in the fall, and we've since amended the program to capture boosters."

As far as litigation teams are concerned, they'll have little choice to become more efficient with their resources, particularly as matters increasingly move to fixed-fee models, says Mona Datt, the founder and CEO of Loom Analytics in North York, Ontario. Her firm services both legal and insurance firms, offering tools for analytics and bespoke workflow management.

"If you're on a fixed-fee model, you've got to learn how to run a profitable practice," says Datt. "Our platform solutions are not because people are working from home—it's that their clients have had to tighten their belts, which has directly impacted how they do business. Some of the solutions that we're putting out are driven by the staffing issues that were furthered by COVID."

Products like those Loom Analytics offer address non-billable, repetitive tasks, says Datt. Using them can liberate lawyers staff and law firm staff to focus on more value-added tasks, and it creates a better experience for clients.

None of this is to say that remote litigation will entirely replace in-person hearings. While lawyers now recognize the value of Zoom hearings, there remains a reluctance, particularly with the criminal bar, to more readily adopt it.

"They think that credibility can't be as readily determined in a Zoom hearing, and they don't want to put the liberty of their clients at risk," Stevenson says. "I have less patience than most for the lawyers who insist that there have to be hybrid trials."

Besides, he adds, the legal system remains strained, and no amount of technology can fully compensate for the need for more judges and resources to address the courts' current backlog.