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In 2020, the COVID-19 pandemic sparked an essential leap forward in how lawyers and decision-makers use advocacy tools and technologies, many of which were considered cutting-edge just a year ago, in commercial dispute resolution.
“Zoom” is now a household word (rivaling “election results” as a top trending Google search in 2020) and has rapidly become a noun, a verb, and an adjective. We both examine witnesses and argue hearings virtually, on fully electronic records, in the ordinary course. In jurisdictions across North America, our courts have risen to the challenges and steep learning curves presented by the pandemic, adapting to the new reality and adopting new technologies and procedures at an unprecedented rate. Today, for example, in many jurisdictions, we can (or will soon be able to) virtually commission an affidavit, serve it by email, and e-file it with the court, all with a few clicks and within a few moments.
The pandemic was not the only impetus for change. It accelerated our existing technological trajectory, but it did not change our trajectory altogether. So there is good reason to doubt that a post-vaccine world will revert to the ways things were done before. Many changes ushered in by the pandemic are here to stay, and other changes are coming. To get—and stay—ahead of the curve, young advocates should ask themselves: How will commercial dispute resolution evolve in the medium-to-long term, beyond COVID-19?
Recently, one of Canada’s preeminent counsel, and a past president of the American College of Trial Lawyers, Jeffrey Leon, LSM, FCIArb of Bennett Jones LLP, delivered a virtual keynote address titled Predicting the Future of Commercial Dispute Resolution. Two concepts featured prominently in that keynote address:
- Leon foresees that the future of commercial dispute resolution will hold more arbitration than ever before. North American courts have fully embraced arbitration, deferring to arbitration agreements when appropriate. Arbitration has also increased in popularity among companies looking for ways to avoid the (real or perceived) inefficiencies of court-focused litigation. The popularity of arbitration is likely to rise further after COVID-19, as companies and their counsel look for ways to compensate for significant court backlogs created or exacerbated by the pandemic (although diverting to arbitration will not always be advisable or possible, as with jury trials, for example). Leon anticipates that, with this greater reliance on arbitration generally, we may also see more class arbitration and self-represented parties in the arbitration context.
- Leon also foresees that recent technological advancements affecting commercial dispute resolution will be met with further innovation and adoption in the coming years. This year, the bench and bar made remarkable strides in developing best practices and model orders to keep up with the breakneck pace of technological change. Innovation will not stop there. Organizations such as Arbitration Place (based in Toronto, Canada) are already working with platforms such as Zoom to design customizations for the dispute-resolution context. Leon cautions that, despite this trend, lawyers and decision-makers will not take an all-or-nothing approach. Traditional methods will persist.
Given these well-considered forecasts about what the future of commercial dispute resolution may hold, here are five tips for young advocates about how to set yourself up for success in the post-pandemic litigation and arbitration landscape:
- Be creative. Proceedings in court and arbitration are not necessarily binary. Think about ways that you can weave together arbitration and court proceedings to maximize efficiency and reduce costs. This could mean using an arbitrator to deal with pretrial or case-management matters to move a case forward. There is no “one-size-fits-all” approach.
- Embrace technology. Younger advocates must be in the vanguard of embracing dispute-resolution technology. That means spearheading the adoption of technology at your firms and integrating technology into your practices. Virtual examinations and hearings are here to stay, and they may even become the norm in some contexts (whether or not we think that defaulting to virtual would be a positive for the administrative of justice). To resist technology is to fall behind.
- Become a master. To excel in this age of technology, young lawyers must be well versed in the software and platforms that facilitate the use of technology. This has become a basic competency for litigation and arbitration lawyers. But technology—like the case law governing our areas of practice—is not stagnant. Young advocates should commit themselves to staying up to date, which means taking full advantage of available training and courses. Decision-makers will continue looking for ways to use technology to reduce expense and increase efficiency. Young advocates who master key technologies will be in demand, and will no doubt become more essential than ever to more senior counsel who may not be as technologically fluent.
- Seek out training opportunities. If the future of commercial dispute resolution involves more arbitration than ever before, that is good news for young advocates. The last several decades of litigation were marked by fewer and fewer cases going to trial. Young advocates need opportunities to gain experience in trials and other meaningful hearings. The flexibility of the arbitration process may generate more opportunities for young advocates to gain that experience, and young advocates should actively seek out opportunities.
- Be flexible. While the use of technology will continue to increase, technology is not an all-or-nothing proposition. As lawyers and decision-makers find creative ways to meld traditional and virtual approaches, young advocates will need to stay flexible and think about how new tools at our disposal can add value for our specific clients in specific disputes. Sometimes, that will mean a hybrid approach adapted to the needs of the case. There are still advantages to in-person cross-examinations and arguments, and they should not be disregarded. Flexibility and adaptability will distinguish effective young advocates in this context.
Gannon G. Beaulne is a commercial litigation, class actions, and international arbitration lawyer at Bennett Jones LLP in Toronto, Ontario, Canada.
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