In this episode of Friends Who Argue, Daniel Baum, Partner in the litigation group at the Montréal office of Langlois chats with Lillian Pan, Q.C., a Partner practicing commercial litigation in the Calgary office of Dentons, about practical tips and tricks for optimizing remote examinations.
Daniel Baum is a litigator who acts on a variety of commercial and public law disputes, has experience before all levels of Quebec and federal courts (including the Supreme Court of Canada), who has taught written and oral advocacy at Université de Montréal’s Faculty of Law.
Lillian Pan has over 30 years of experience in commercial litigation, and is a leading mentor, speaker and panelist who teaches trial advocacy at the University of Calgary. She is an Advocates Society Board Member and recently moderated Litigating from Home: Remote Examinations, a CPD program now available to members of The Advocates’ Society through the Free Member Resource Library here.
Want to read more? TAS’s Best Practices for Remote Hearings, drafted in partnership with the OBA, FOLA and OTLA, provide helpful guidelines for both virtual examinations and virtual hearings. Read the Best Practices (recently updated in Spring 2021), and see related resources, here.
In this episode of Friends Who Argue, Daniel Baum, Partner in the litigation group at the Montréal office of Langlois chats with Lillian Pan, Q.C., a Partner practicing commercial litigation in the Calgary office of Dentons, about practical tips and tricks for optimizing remote examinations.
Daniel Baum is a litigator who acts on a variety of commercial and public law disputes, has experience before all levels of Quebec and federal courts (including the Supreme Court of Canada), who has taught written and oral advocacy at Université de Montréal’s Faculty of Law.
Lillian Pan has over 30 years of experience in commercial litigation, and is a leading mentor, speaker and panelist who teaches trial advocacy at the University of Calgary. She is an Advocates Society Board Member and recently moderated Litigating from Home: Remote Examinations, a CPD program now available to members of The Advocates’ Society through the Free Member Resource Library here.
Want to read more? TAS’s Best Practices for Remote Hearings, drafted in partnership with the OBA, FOLA and OTLA, provide helpful guidelines for both virtual examinations and virtual hearings. Read the Best Practices (recently updated in Spring 2021), and see related resources, here.
Welcome to Friends Who Argue, a podcast from The Advocates' Society.
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Webnesh Haile:On this episode of friends who argue Daniel Baum partner in the litigation group at the Montreal office of Langlois chats with Lillian Pan, Q.C., a partner practicing commercial litigation in the Calgary office of Dentons, and Advocates' Society board member, about practical tips and tricks for optimizing remote examinations. Lillian Pan moderated Litigating from Home: Remote Examinations, a CPD program now available to members of The Advocates' Society through the Free Member Resource Library.
Daniel Baum:Welcome to the Friends Who Argue podcast. My name is Danny Baum. I'm a partner at Langlois in Montreal. Uh, I'm here today with, uh, Lillian Pan, uh, and we will be discussing remote examinations. Lillian is a partner with Dentons in Calgary. She has over 30 years experience in commercial litigation. Lillian was recognized as Queen's Council in 2014. She's a leading mentor, speaker, and panelist. She also teaches trial advocacy at the University of Calgary. She's a TAS board member and recently hosted the CPD program Litigating from Home on remote examinations, which is available in the TAS Free Member Resource. Welcome Lillian.
Lillian Pan, Q.C.:Thank you very much.
Daniel Baum:So Lillian, uh, we are well into our second year now of the COVID-19 pandemic. More generally, what have you seen as being the biggest challenges for advocates over the past year?
Lillian Pan, Q.C.:Well, some of it, I think, especially for older advocates like me, you have to learn a new skill and that new skill is learning how to be effective virtually. And that's a skill everyone had to learn, I think, uh, uh, post-pandemic, but it's especially something that, uh, as you get more practice, hopefully you get better at, and you listen to these kind of podcasts, listen to and participate in one's offered by The Advocates' Society on how to do, uh, remote examinations and be more effective.
Daniel Baum:And have you seen any silver linings, uh, for the practice during this period?
Lillian Pan, Q.C.:Some silver linings, uh, in the sense that, you know, the courts were shut down for a large period of time, at least in Alberta, where I am, and, and the fact that the courts can now open despite the ongoing issues with COVID is important. And so the silver lining is that things are carrying on and that we are doing more and being able to assist our clients more because they were quite frustrated I'm sure in the beginning with the shutdowns. So we can do for example, virtual examinations.
Daniel Baum:Right. And we get to speak to each other, even though we're many miles away. So that's, uh, that's a fun perk too. So, um, you're a member of the TAS Modern Advocacy Task Force, which has been looking at virtual and in-person examinations amongst other issues. Uh, you're also a faculty, as we said on the TAS CPD program on remote hearings. Uh, this has been a big learning curve for all of us. I think we can agree with that. So, uh, with that in context, I wanted to ask you a few more specific questions about virtual examinations. Uh, so first, how important do you think it is for counsel to cooperate prior to a virtual examination? So, so we make sure that the examination goes smoothly.
Lillian Pan, Q.C.:I think now more than ever, it is very much important prior to a virtual examination to have that liaison with your opposing party and all the other persons who will participate. Because in a virtual world, a lot of things can go wrong. And as many of them, as you can try to solve in advance, so that you're not taking up precious time you could be examining with dealing with logistics is really important. I'll give you an example. It's really important for example, to think in advance of what platform you're gonna use. Had that happened to me early in, uh, in the COVID period where we were doing a cross examination virtually and much to most of the people's chagrin because everyone thought it was gonna be on Zoom. The court reporter came on and said, no, the council's assistant had booked it in WebEx. So when you're suddenly, you know, faced with a different platform, that can be a problem. These are the kind of things that if you talk to counsel though, that you need to talk to counsel because you need to be more prepared in advance. How are you going to show documents to a witness virtually? How is that process going to be recorded in a way that the court reporter can appropriately, for example, mark exhibits, if necessary. How at the last minute do you deal with issues of new documents that you may suddenly need to put in front of a witness and you don't wanna take the half hour break to try and figure out how to do that when you could have addressed it earlier in advance.
Daniel Baum:And do you think it's best that, uh, counsel agrees, uh, in writing as to a, a spec, a specific protocol as to how they are gonna conduct a virtual examination?
Lillian Pan, Q.C.:Sometimes that's helpful because then there's less ambiguity. When time comes. There are protocols, for example, in place that have already been thought of by groups in Alberta, there's a group that has put together protocols. Um, it it's a resource that is available and some of those are because people have already encountered the difficulties and thought of in a and thought about putting it down on paper. And, and they're good reminders, if not, uh, a way of saying to someone else, hey, look, somebody's already thought of these protocols. I'm gonna send them to you so that we can agree in advance. And in fact, I often put the protocols, depending on what it is, on the record at the outset, so that it's very clear what's going on and you'll usually get agreement from opposing counsel and co-counsel on these things because nobody needs to have a big"schmuzzle" starting at the beginning before you've even gotten into asking questions.
Daniel Baum:Indeed. Yeah, I, I I've, I've been on both sides of that. And, and I agree that, uh, having seen, uh, some of the protocols that are being used in various jurisdictions, including Alberta, that, uh, they are very useful and they do seem the questions that they put there, uh, to put on the record initially, I think are, uh, uh, applicable, uh, likely in all, uh, Canadian jurisdictions, including where I am here in Québec. Are there any additional considerations that, uh, an advocate should keep in mind when, when they're questioning a witnesses, uh, including items to, to put on the record? So, uh, you know, we just mentioned the protocol, but, uh, more specifically, what, what should we ask to be on the record at the beginning, uh, of an examination or during the examination, uh, to, to best ensure, uh, that the record is, uh, accurate and, uh, uh, that the process goes smoothly?
Lillian Pan, Q.C.:Well, I can tell you in some of the examinations I've been in the court reporter often has their own protocol as well. And that's because when you do remote examinations, you're always gonna potentially have technology glitches. There are going to be pauses, it takes longer for, but for people to come onto the, their voice to come on, but they can also overlap a lot, which creates more difficulty for a court reporter, uh, than it would happen in my experience inside a room, a boardroom, where you are doing the questioning. So they, they will put in their protocols, but you would also want to be thinking hard because there's a lot of, uh, concerns raised. And, and I've heard this in our Modern Advocacy Task Force, questionings of people as to how they like virtual versus in-person that, you know, maybe somebody's taking advantage of the virtual process. And so you wanna think about some of the questions that will just kind of hopefully alleviate some of that you ask, I've asked, uh, what, whom I don't know very well to move the computer screen around so I could see the room they're in. You know, you wanna make sure that the windows are closed because, you know, having an important question, be blurred, you know, be completely covered over by honking or noise outside the window has happened. And so these are experiences that we learn over time are things that you want to be careful about. If it's a cross-examination or even a, an examination for discovery or questioning, as we call it in Alberta, you will wanna make sure that they're not, um, you know, they tell you what, and, and, and confirm on the record that they don't have other screens open, that they aren't getting messages or texts, they've closed off their screen sharing. Uh, you know, and, and that kind of thing. And have, you know, uh, and the usual warnings you often give during questioning to, to remind the witness. They're not allowed to talk to anyone, especially in cross-examination. Uh, when there's a break, you ask, you know, you, those kind of things, the normal things that you do, you will still do, but you may wanna be very clear at the outset in setting up additional questions you may have about what screens, what, what devices they have in the room and their confirmation that they turn them off for, for example, and that there's no one else in the room, cuz often all you can see is that is that.
Daniel Baum:The one person, right?
Lillian Pan, Q.C.:I've also, for example, asked a witness when I'm looking at them virtually to change their positions. Because that I had, for example, recently, a witness who had a light behind his, from the overhead behind his, behind his face so that it totally obscured his facial expressions. I couldn't see him at all. So I asked him to turn his screen and to change his position so that I could see him because it's bad enough in a virtual world that you can't really see all the visual cues. That's one of the problems with virtual, but to have it so that you can't actually see because the lighting is not good enough or things like that. So sometimes you can do a test run as well, where you agree to do, um, maybe a day ahead or maybe the day of, but 15 minutes ahead that you're running a test screen where you're going to look at everybody and make sure that you can see people. Because often as counsel, you have to also talk to your client about in advance being prepared that in a virtual questioning, they're not sitting right beside you. And so you've gotta be able to at least hold up your hand, if you think the question requires council's intervention.
Daniel Baum:Yeah.
Lillian Pan, Q.C.:And, and normally, you know, normally there are other are cues in the room that allow you to, to do that. You wanna give your clients a, a, an ex a discussion in advance that they understand that if you want them to pause after the question is asked, because the screen pauses anyway, so that you can jump in, if you think the question is not appropriate, when it's your client being questioned. Right?
Daniel Baum:Absolutely. So, yeah. So meeting with clients too, and preparing them has changed too, I suppose. Right? When, when it's your client who's being examined, you just mentioned one of the things, you know, you could have cues where when you, you could raise your hand for example, so that they don't answer before you have a chance to interject. Any other tips you have for preparing your own client, uh, to be examined?
Lillian Pan, Q.C.:Well, we have to get them ready in any event for the questions and for the understanding under your rules of professional conduct, when, uh, lawyers are permitted, for example, to speak to their clients during an examination for discovery and, and all those kind of things, you have to look at your rules because some of them are, are slightly different in different jurisdictions. Yeah. But the point is those things are the normal course that you would, you would, um, uh, agree with them on, but you might also want them they're not, not allowed to record or broadcast. So that might be also something put on the record. Yeah. You know, that they undertake not to move out of view unless instructed by counsel or the reporter. And you know, all those kind of things that I say in these kinds of protocols that have been developed. And I know I know of the ones in Alberta, and I'm sure if you look through your jurisdiction, there may be articles on that as well. Uh, Advocactes' Society has done some, uh, some, uh, of that as well, so that you can find the more helpful ones to, to, and to talk to your court reporter in advance, cuz they may have, but depending on the platform they're using certain protocols that they want to make sure are followed, for example, how documents are going to be marked, what the witness can look at. It requires you to send the documents over probably earlier than you would like. And in a cross-examination that can take the element of surprise away.
Daniel Baum:Sure.
Lillian Pan, Q.C.:From cross-examination. And some people don't like that for obvious reasons.
Daniel Baum:Right.
Lillian Pan, Q.C.:Because of the fear that then there might be also answers fed to the witness. But if you can force more of these protocols in play.
Daniel Baum:It, it, it, it takes out some of the guesswork and makes it a bit, uh, more secure for everyone. So, so touching upon that, what do you think are some of the potential pitfalls of, of doing virtual examinations? Do, do you think for example, I mean, we mentioned, you know, before you were not able to see the witness's body language as well. Uh, especially, I mean obviously if they're being obscured, but even in, even if they're not, do you think that, for example, it's too, it's harder to assess a witness's credibility, or do you see any other pitfalls potentially, uh, in conducting virtual examinations as opposed to real life?
Lillian Pan, Q.C.:Um, absolutely because body language is often very important, right? And you can only see a certain portion of a person, so you can't see where their hands are. You can't see if they're looking at devices. Right? And so asking them to look into the camera as much as possible so that they're actually looking at the camera as opposed to looking down helps a bit maybe. But what you have to do is try to engage and build rapport. It's harder. It's absolutely harder. And you have to go slower because you know that in a virtual world, there's this time lag. And sometimes with, uh, the voice carryover, you have to be prepared to accept that there could be technology issues where suddenly somebody freezes and, and, and you can't tell, if they actually can hear you, because you can't tell from looking at them. So there have to be some discussion about how you'd address that and make sure that whatever is being recorded is captured accurately in the transcript. Right? At the end of the day, we are, we are creating a transcript. It's not usually a visual one. It's just an auditory one. So if the auditory aspect drops, you'll need to take a break and figure out where you were at. And unfortunately for cross-examination, some people complain bitterly with, if you just reached that point where the almost gotcha moment.
Daniel Baum:Yeah.
Lillian Pan, Q.C.:It can be very difficult.
Daniel Baum:What, what about any advantages? Do you think that and the, the virtual examination process, which is in a lot of ways, been forced upon us, uh, recently over the last year, are there any positive outcomes of this, uh, in terms of, you know, how they could be better in some ways than in-person examinations? Perhaps I'm thinking, you know, access to justice, cost effectiveness, especially if we're dealing with perhaps multi-jurisdictional litigation where it's maybe harder for the per, you know, we used to have people come travel across, uh, the country or whatever it might be to attend an examination. Now we don't have to necessarily, uh, do that. So, I mean, other than that, do you think, do you think that there are any other, uh, advantages that you could think of to this?
Lillian Pan, Q.C.:Well, I, I think, I think it's just a different medium and surprisingly enough, some people who may not be as effective in person can often sometimes be more effective virtually. So you have to test it out, you have to practice it. And, you know, The Advocates' Society offers courses where now a lot of them are virtual and there's an opportunity to find ways in which you get feedback from people to be more effective. For me personally, I find that my voice has to be louder for, for it to be effective, but I've enjoyed it. I didn't think I would enjoy virtual advocacy, but I've enjoyed it. Uh, I don't know if I'm more effective, but other people have told me I am more, I am quite effective at this. And I like that. The fact that I feel comfortable now, that's partly maybe because I feel comfortable. So for those of us who haven't had a, a lot of practice on it, do find ways to try it, even if it is just a mock on a mock basis, so that you can see how well things work. Having, um, a good light, having a good setting, so that you can convey to the opposing party and the potentially opposing witness that you are very serious. Dress appropriately. Think about all those things that are important because perhaps appearance on a virtual world can also be a very important factor that you don't think about, but, but are more important now, because all I can see is really your face, the upper part of your body.
Daniel Baum:mm-hmm<affirmative>.
Lillian Pan, Q.C.:And whatever is showing behind you. So think about those things. Um, Chief Justice, Fraser of the Court of a Appeal of Alberta did a webinar for The Advocates' Society, where she talked about virtual, uh, appearances in the Court of Appeal and gave a lot of very helpful, um, hints on how to make it more effective. And I think that's the same for these kind of virtual examinations. If you want, watch that webinar, I think it's available for free on the Court of Appeal website and in Alberta.
Daniel Baum:You wanna avoid, you know, using filters that make you look like an animal or having the beach setting, I would suppose in the background.
Lillian Pan, Q.C.:< Laugh> Y es. We all know about that filter thing. Although I, I, I understand that's an outmoded program that no one can find.
Daniel Baum:Right. That's it. Um, now, now I'll, I'll have you look into your crystal ball. Do you think that there's, is there any turning back from virtual, from the prevalence of virtual examinations? You know, when the pandemic finally does come to an end, are we gonna go back to the way things were, or are virtual examination still gonna take up a big part of our, our practices?
Lillian Pan, Q.C.:I think it depends upon your clients. Some clients can't afford if they are, for example, in remote areas that definitely virtual, uh, to some degree is a huge cost savings.
Daniel Baum:Mm-hmm<affirmative>,
Lillian Pan, Q.C.:And, and from counsel's perspective, it can also be more efficient because you just turn on the matter in your, your computer at the office or where you're working from, and you can carry on. Um, so is gonna be an element in which it, it, I think will carry on. But for issues where you really are seriously concerned about credibility, I would think that a lot of counsel would insist, if they had the option, and especially given that the default is generally in-person, that they would insist on proceeding in person. But I think learning how that skill and practicing it more regularly will make you more effective if you do it, uh, uh, do virtual because I don't think it's gonna necessarily go away. Hopefully it will, it will not replace in person to some degree because of the detriments of, of not being in person, but at the same time, you know, if people, uh, are intent on, on, if you're worried about cheating and, you know, they can go to the washroom and turn on their phone, they could do all kinds of things. So you have to, there's a certain element of expectation that people will behave. Uh, but certainly if you're really concerned in person often is, um, is, is the default.
Daniel Baum:That's good. So it's to wrap things up, uh, Lillian on a bit of a lighter note, uh, our, our podcast is called Friends who Argue, we did wanna ask you, can you tell us a time that you either had to argue against a friend or a time that you made friends with opposing counsel?
Lillian Pan, Q.C.:I know, uh, I thought about this question in advance because I know knew it was coming. And in my over 30 years, maybe I, I have been been lucky in the sense that I've never had to have a real friend sitting across from me as opposing counsel. I haven't had that experience, but I have, um, had counsel opposite me that I've become friends with in a way that's important for collegiality in our profession. And also for, for a point I wanna make, which I teach and talk about. And that is that when you cross examine or when you examine, you don't have to do it crossly. And so that's a good point. So it's important to, to realize that you can be a person who has many speeds and you have to find out which speeds you're comfortable in and are effective in, but there can be witnesses where you have to be more stern. So as to bring them around to understanding that they have to take your or questioned seriously, whereas there's other witnesses where you can be more, um, effective by just being friendly. And they just wanna tell you everything, uh, sometimes to the chagrin of their own counsel, right? But that can be very effective. And also where I think, uh, it's our professional responsibility and as officers of the court to behave in a way where we hopefully treat opposing counsel, as we'd like to be treated, because you, uh, in the way that you carry on in your demeanor with opposing counsel might be someday the way that you want them to treat you. For example, if you are being fair, as much as possible on things that are just logistics or things like that without, you know, your counsel may expect your, your client may expect you to be a very, very forthright in pushing forward their position. But at the same time, you have to explain to your, your client that behaving in a way that is appropriately professional with the opposing counsel is the way you wanna go. You wanna take the high road because someday you may need that same high road behavior from the opposing counsel. So my suggestion is to think about those things. We don't cross-examine crossly because it's not effective. It puts the witnesses dander up, and they're gonna fight you even on things that are, are not, um, not contentious because your attitude will signal to them how they might wanna treat you back. So think about what is your most effective style, and it doesn't have to be one speed, but try it out, work on it and find your, your comfort zone. Because when you're comfortable with what you're doing and you are in charge, cuz this is your examination, you will signal something that hopefully will get honest, complete answers back.
Daniel Baum:That's great advice. Thank you for your time, Lillian. So, uh, just a reminder that, uh, the CPD program Litigating from Home on remote examinations is available at the Free Member Resource. So I invite all of you to, uh, have to listen to that, to get into more detail on all of these topics and thanks again for your time Lillian and we hope to see you soon.
Lillian Pan, Q.C.:I enjoyed myself, Daniel. It's always a pleasure.
Webnesh Haile:Thank you to Lillian Pan and Danny Baum for this useful discussion. Thank you to my co-eds Chris Horkins and Chloe Snider, our production leads Ian Breneman, Natalia Rodriguez, Laura Gurr, Matthew Huys, and Jean-Simon Schoenholz. To Danielle Baglivo of Dentons, our technical sponsor for her editing assistance. And to The Advocates' Society team for their support. This is Web Haile, co-editor of Friends Who Argue, signing off.
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