Canadian Lawyer

June 2022

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The answer to "Virtual or in-person?" will continue to be "It depends" when determining the best course. However, in-person is no longer the default 1 EDITOR'S DESK UPFRONT EDITORIAL Managing Editor Tim Wilbur Senior Editor Zena Olijnyk Editor Aidan Macnab Production Editors Kel Pero, Karen Atienza Writers Lucy Saddleton, Annabel Oromoni, Katrina Eñano, Jason Tan, Angelica Dino, Bernise Carolino, Kiezzsa Cruz CONTRIBUTORS Neill May, Maureen Palmer ART & PRODUCTION Designers Marla Morelos, Khaye Cortez Customer Success Managers Cristina Tamolang, Dyanne Dimatulac Production Co-ordinators Kat Guzman, Loiza Razon Global Production Manager Monica Lalisan SALES & BUSINESS DEVELOPMENT VP, Media and Client Strategy Dane Taylor Sr. Business Development Managers Steffanie Munroe, Lynda Fenton Business Development Manager Maurice Phillips CORPORATE President Tim Duce Events and Conference Manager Chris Davis Chief Information Officer Colin Chan Human Resources Manager Julia Bookallil Global CEO Mike Shipley Global COO George Walmsley EDITORIAL INQUIRIES NAUK SUBSCRIPTIONS CO-ORDINATOR Donnabel Reyes tel: 647 374 4536 ext. 243 ADVERTISING INQUIRIES S hould courts go back to normal or stay virtual? Most lawyers would answer that question with a lawyerly "It depends." In this case, they would be correct, given the variety of proceedings. However, there has been a fundamental shift with the pandemic. We can now add another lawyerly caveat to the answer by saying, "It depends, but the burden of proof has shifted." In other words, the presumption before the pandemic was that all legal proceedings should be in-person. Phone and video calls were rare exceptions, and any lawyer who suggested they would work better had to prove why. But the world has changed dramatically with the pandemic. "Our job is to be persuasive advocates, and whether that's happening virtually or in person, I don't really think that has fundamentally changed," says Andrea Wheeler at Lenczner Slaght in Toronto (p. 4). For a lawyer like Wheeler, who practises business litigation, her clients, opposing counsel, and the judges hearing her clients' cases are likely keen to go virtual. With sophisticated clients and complex issues, business disputes are ideal for virtual proceedings. For other areas of law, though, like criminal and family, many courts have shifted dramatically back to in-person proceedings. Judges are tired of Zoom proceedings with an inappropriate air of informality, in which witnesses are driving while they speak – or, more egregiously, proceedings are secretly recorded or witnesses coached in the background. But what these examples illustrate are the extremes – and there are ways to address them without the knee-jerk reaction of going "back to normal." Most lawyers now agree that credibility determinations do not require you to see a witness in the flesh. And the access to justice benefits for virtual are immense. Zoom turned a divorce from a five-to-six-hour day into 45 minutes, and saved clients thousands of dollars per court attendance, says family lawyer Russell Alexander (p. 5). So the answer to "Virtual or in-person?" will continue to be "It depends" when determining the best course. However, the default is no longer in-person. The question now is, "If you think in-person is best, show us why." Tim Wilbur, managing editor Shifting the burden of proof on virtual proceedings ISSUE 46.02 | MAY 2022 Canadian Lawyer is published four times a year by Key Media Canada (Law) Ltd. KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (Law) Ltd. CANADIAN LAWYER is a trademark of Key Media Canada (Law) Ltd. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate; however, the publisher assumes no responsibility for errors or omissions. Canadian Lawyer disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement #41261516 ISSN 0703-2129 ©2021 GST/HST Registration #799898465RC-0001 RETURN UNDELIVERABLE CANADIAN ADDRESSES TO: CIRCULATION DEPARTMENT 317 Adelaide Street West, Suite 910, Toronto, ON M5V 1P9 RETOURNER TOUTE CORRESPONDANCE NE POUVANT ÉTRE LIVREÉ AU CANADA AU SERVICE DES PUBLICATIONS 317 Adelaide Street West, Suite 910, Toronto, ON M5V 1P9 Key Media Canada (Law) Ltd 317 Adelaide Street West, Suite 910 Toronto, ON M5V 1P9 tel: +1 416 644 8740

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