A few months after the pandemic ended I had a trial coming up. I was looking forward to doing my first trial by Zoom. The matter was simple, scheduled for three days at most, and for a change I would not have to drive to the courthouse on what is literally the worst highway in North America and perhaps the worst in the world.  But then an email shattered that expectation.

“The trial will be in person,” my inbox told me in an email from the judge.  When I objected he pushed back.

“How can a judge assess credibility without the witnesses being there in person?” That’s what the judge wrote.

I knew the judge, or at least knew of him. He’d never been to court as a lawyer.  Never, not once, at least not for anything that had been reported. He’d worked hard inside a government ministry for twenty years for not much money, at the end of which he was rewarded with a judicial appointment.

The judge was smart. He knew his law. But he had never conducted a trial, not once, in all his years at the bar. He had no knowledge of the law of evidence, and even the court rules were something of a mystery to him when he was first elevated to the bench.

So the day of trial came and I got into my car and I fought traffic all the way to the court on the worst highway in the world, leaving very early to avoid being late.

I was ready for an old-school trial, with paper and live witnesses and briefs and tabs, and I brought everything, just like in the old days, with extra copies too, in case the court staff lost the copies I’d  filed for the court.  

The trial started, and I began the examination-in-chief.

“What bookmark,” the judge said when I referred to a document,

 I held up my brief of documents and told him the tab.

The judge scolded me, pointing out that he wasn’t using the hard copies I’d filed. He was using the court’s file management system. He was staring at his computer,  trying to find a document on his screen.

 But I could not help him with that. I had come ready for old school, not new. I had no computer with me. The judge sighed at my error and told me to continue.

My client’s examination-in-chief took fifteen minutes, and opposing counsel could not touch him on cross. Now it was the defendant’s turn.

The man gave evidence-in-chief, and gave it badly, his face and his eyes not matching his words. His face said he was a sneak, and at times I wondered if he was trying not to smile.

But the judge saw none of this. His head was down, and he was typing furiously on his keyboard, trying to catch every word.

“Your witness,” opposing counsel said.  I waded into the witness, and after a few simple questions the defendant’s face was beet red.

But the judge did not see this. He was typing away, looking at his computer screen. Justice was not deaf that day, but it was totally blind.

“Why is your face so red?” I said to the witness, forcing the judge to look, to actually turn his gaze to the man in the witness box and assess the credibility of the lying defendant.

“That’s not appropriate,” the judge said to me, admonishing me not to make comments on a witness’s demeanour, protecting the witness, wanting him to feel safe and comfortable.

 I reminded the judge of his email to me, ordering an in person trial so that the judge could assess the man’s credibility. 

The judge did not care for my remarks.  They were offensive, he said, and when he dismissed my client’s case he made specific reference to comments, weighing my unprofessional conduct in the balance along with the evidence, and finding in the defendant’s favour.

A few months later I was in the Court of Appeal.  The court asked responding counsel to speak first, and when he was done, the panel said they did not need to hear from me, setting aside the lower decision and granting my client judgment with costs in the lower court and on appeal.  They gently reminded the trial judge of the importance of credibility, and the role of counsel in helping the court assess it.  They were old school, too, all former trial counsel, and they did not approve of how the trial judge had conducted himself.

But I learned my lesson.  I no longer point out to the judge that they are missing key information when they cannot even be bothered to look at a witness who is melting down on the stand.   There’s no point.

But I have to ask, why is the court dragging lawyers and parties to court to assess credibility, when more often than not the judge spends the entire trial staring at a screen?