Are Virtual Hearings the New Normal?

September 28, 2020 Noah Weisberg Estate Litigation, In the News, Litigation Tags: , , , , , , 0 Comments

As the readers of our blogs are well aware, the new COVID-19 ‘normal’ has extended into the practice of estates and trusts.  While solicitors have had to adapt to the way wills are prepared, litigators (barristers) have also had to adapt.  Procedures that were ordinarily done in person, such as mediation, examinations, and trials, are now being done virtually.

Amongst my peers, the decision by Justice Myers in Arconti v. Smith has been pointed to as the authority that despite COVID-19, the show must go on.  Please see my firm’s blog for an excellent summary of Justice Myer’s decision.  Those on the other side of the fence, wishing to delay the show, have pointed to Justice Morgan’s case conference endorsement who found that:

I am anxious not to delay litigation any more than needed given the present court suspension and general societal lockdown. At the same time, I would not want to hold a hearing that in its very format raises due process questions for whichever party ends up being unsuccessful. I admire Defendant’s counsels’ enthusiasm, and would be willing to conduct the hearing via videoconference if both sides were willing to do so. However, I do not think it appropriate to compel the moving party to proceed under conditions where Plaintiffs’ counsel perceive that they may not be able to present the case as effectively as they would in person.

However, since this endorsement, Justice Morgan has issued a continued case conference, whereby, following Arconti, the show will go on –  the matter will now proceed virtually.  Morgan J. found that:

I have full confidence that counsel in this case, who, while arguing adversarial positions, appear to have developed a very professional and civil working relationship, will be able to rise to the challenge of conducting a complex hearing by videoconference. They have already indicated to me a willingness to work together to provide the court with a convenient method for filing and accessing the voluminous materials through cloud-based storage.

So, are virtual hearings the new normal?  It sure seems so.  Decisions finding the contrary continue to be revisited and reversed.  The show must go on.

Noah Weisberg

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