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Author: Gideon Christian

LL.B (Lagos), LL.M, PhD (Ottawa). Assistant Professor.
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eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

By: Gideon Christian

PDF Version: eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

In adversarial litigation, oral questioning is an out-of-court pre-trial or pre-hearing proceeding where a party to litigation orally examines (by way of questioning) under oath another party adverse in interest, or their agents, for the purpose of adducing information that may be used as evidence. In the Alberta Rules of Court, Alta Reg 124/2010 (Alberta ROC), oral questioning can take the form of questioning for discovery (Rules 5.17 and 5.22) or questioning on application (Rules 6.7 and 6.8). Before the COVID-19 crisis and its social-distancing requirements, the default method of oral questioning in civil litigation was in person, with the parties and their lawyers present at a physical location accessible to all, such as the lawyer’s office or some other location chosen by the parties. A certified court reporter must also be present, who swears the witnesses and also takes record of the ‘question and answer’ proceeding.

The COVID-19 pandemic has resulted in public health and judicial directives enforcing isolation and social-distancing rules. Consequentially, in-person questioning became impractical on public health grounds. Although the justice system was substantially paralysed by the pandemic, litigation must go on even in that state of paralysis. In response to the realities imposed on the justice system, in-person oral questioning gave way to virtual or remote questioning using audio- or video-conferencing technologies. This method of questioning is what I refer to in this post as eQuestioning (short for electronic questioning).

Lawyer Ethics in the Virtual Courtroom

By: Gideon Christian

PDF Version: Lawyer Ethics in the Virtual Courtroom

The COVID-19 pandemic has radically altered the way we live, work, and play. As will be examined below, it has altered the way lawyers conduct litigation. By mid-March 2020, the justice system in Canada (and in most other jurisdictions around the world) was scrambling to change its default ways of doing business – from the service of court documents to hearing of matters before the courts. Within a very short timeline, the courts and the legal profession quickly became open to doing things in a way they have long resisted.

Practice directions emerged overnight permitting parties to electronically file and serve documents. Virtual hearing became the default mode of court hearings in many jurisdictions during the early stage of the pandemic. On March 19, 2020, the Lord Chief Justice of England and Wales issued a directive that, “[t]he default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.”

Soon, in-person hearings gave way to e-person hearings using innovative videoconferencing technologies like Zoom, WebEx, Teams, Skype, GoToMeeting, BlueJeans, CourtCall, etc. For many in the legal profession who were previously familiar with these technologies, the transition was very smooth. For the Luddites who were forced to embrace the change, the transition turned out to be (to their amazement), not as difficult as they had previously thought. They have discovered that legal technology is no rocket science after all.

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