The End of the (Digital) Beginning
In 1942, after many setbacks, Winston Churchill, blending the encouraged optimism of the victor, with the cautious reserve of the realist, marked a sorely needed WW2 battle victory with his historic line:
"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."
We who battle to advance law and technology are accustomed to setbacks and defeats at the hands of the old guard. Although the world has gone digital, litigation and litigation lawyers remain by and large fixed in a pre-digital world. Change, as a recent SLAW post observed, comes slowly.
This week, however, a visionary Ontario judge struck a blow for the modern world. Anyone engaged with technology and litigation will recognize the name of Justice D. M. Brown. Justice Brown sits in the Ontario Superior Court of Justice. He is known for his intelligence, and for his capacity to adjudicate complex cases.
Justice Brown is also known for his enlightened engagement with technology in litigation. In a number of decisions decisions, he has been an articulate advocate of digital progress for the benefit of the public, the profession, and the judicial system. For example:
In Leduc v. Roman His Honour offered as intelligent an analysis of social media as evidence as one can find in the caselaw.
But this week, in Bank of Montreal v Faibish, Justice Brown outdid himself. He was clearly frustration at litigators’ resistance to change. A bank’s lawyer told the court that he intended to run a big trial with 10 paper-filled binders, instead of digitally. His Honour laid down the law - literally - and ordered the case to be conducted as an e-trial. Enough already with the paper. Just as 45 RPM records have disappeared, paper trials should be done with, and over.
The language Justice Brown uses to express his views is fire and brimstone, by judicial standards. “Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back.” It is a Crispin’s Day rallying cry for the digital warriors who have been thirsting for just such a moment, to encourage them to carry on.
The entire decision is short, just 22 sentences. Here are the key passages:
Some counsel (I will not indicate whom) communicated a desire to work in paper. BMO’s counsel indicated that the “paper” version of this trial would result in 10 binders of documents. At the same time BMO would be prepared to circulate a Summation-style database of relevant documents which could also be used at trial by those who so desired.
Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems. While that service possesses some distinctive attributes – constitutional status, part of the foundation of a democratic system of government, etc. – it still remains a service. As a service it must be alive to the way in which the community it serves handles and communicates information.
Our community has undergone radical changes in the way it handles and communicates information. Take music, as an example. As a teenager I treasured my collection of 45 rpms; today, my grandchildren would not know what they were looking at if shown one of the 45 snap-in inserts. A decade later 8-Tracks and cassettes were the rage; they have gone the way of the Dodo bird. Then CDs began their dominance, but are now rapidly fading under the onslaught of MP3s and other digital storage mechanisms.
Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?
Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information. I know there are judges available who are chomping at the bit to conduct more e-trials. Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back. Accordingly, I order that the six-week trial ... be conducted as electronic trials.
Hallelujah. The end of the digital beginning has begun.
Read the full text of Justice Brown’s decision in Bank of Montreal v. Faibish here.