Trial by technology

Written by  Posted Date: August 24, 2015
Trial by technologyTo be part of one of the longest technologically-driven, white-collar-crime jury trials in Canadian history was more than Tala Khoury could hope for during her articles with Fasken Martineau DuMoulin LLP. But that is exactly what the Osgoode Hall Law School graduate got when she joined the Faskens team in the courtroom for eight months helping defend TPG Technology Consulting against the Competition Bureau in Ottawa.

TPG (along with other IT companies) was accused of bid rigging due to an agreement the consulting group made to share contractors in order to fulfil government IT jobs.

“I thought it would be lucky if I could work on one or two trials throughout the 10 months,” says Khoury. “I got this opportunity and I jumped on it.”

The trial was one of a kind for several reasons. A criminal jury trial is practically unheard of for offences under the Competition Act, because the accused normally plead out so the process is faster, especially in cases like this one, where there is no real case law available under the act, Khoury notes.

“An eight-month jury trial in white-collar crime is a very rare occurrence in Canada,” says Peter Mantas, a partner with Fasken Martineau DuMoulin LLP, who was in charge of the defence. “It took us a month just to select the jury.”

TPG was accused of colluding with other bidders selling IT services to the federal government. The Crown said the company and others were guilty of bid rigging because they agreed to share contractors to fulfil a government IT job. They faced jail time and being barred from working with the government if convicted.

The trial ended April 27 in 60 not-guilty verdicts from the 11-member jury.

From a procedural standpoint, one of the most unique aspects of the trial, however, was the degree to which technology was used in the courtroom.

“There were hundreds of thousands of actual documents that were disclosed to the defence and they totalled over one million pages, so to prepare for cross-examination and examination of witnesses during the trial I had to go through and search the disclosure to find documents that would support our case,” says Khoury.

Mantas says the trial, which began in September of 2014 and ended in April 2015, had to be executed electronically due to the sheer number of documents. “One of the courtrooms in Ottawa was especially wired and set up in order to conduct such a trial,” he says.

There were jury screens, public screens, screens in front of the judge, and the defendants. The trial also included a large number of self-represented litigants. Over and above that there were screens that various parties had to handle their own documents as well as screens to view a real-time transcription of the case. For the Faskens team alone, there were seven screens delivering information at any given time.

Khoury was one of the four articling students selected to participate in the trial because she had impressed the partners. While her job was originally to help manage the large number of documents, pulling files, and keeping things organized, she got up to speed quickly once she joined the case the partners had been living with for 10 years.

Khoury would track documents as they were being filed electronically and find other documents that were potentially useful to conducting a cross-examination. “As lawyers, we were thinking about how we would respond to this type of evidence; that’s the kind of thing that we expect good lawyers to do. We don’t expect it from a student, especially a student who has recently come to a case,” explains Mantas.
“It was the kind of work that I would expect from a senior associate, quite frankly.”

Because Khoury rose to the challenge, the Faskens team began involving her more in strategic discussions with the opposing counsel.

“What I was doing was being a document liaison for the defence,” she explains.

A lot of her work consisted of searching through e-mails via dates, key words, and sender names using litigation software provided by Faskens. “A lot of it was just keeping really good notes of the documents that we wanted.”

Khoury would even memorize the code numbers of the documents and exhibits that were most important to the case in order to bring them up quickly and to speed things along.

She does admit that being a recent law grad helped her during the case. “Nobody in school wrote on paper; everybody took notes on their computer. We are familiar with new technology that’s helpful to do document search, to deal with heavy documents.”

Like many large trials, the case often involved a lot of work done after court hours. While it is hard to imagine having a social life during such a trying court process, Khoury says she managed to do so, and the workload really depended on who would be going on the stand next.

It was definitely an experience of a lifetime. Khoury says she learned a lot from her involvement in the trial. “It was an eye-opening experience. I was 80-per-cent interested in litigation when I started my articles, but now I can’t imagine myself doing any other type of law. It’s very interesting and very stimulating.” Often, it would consume her, she says. “As time went by, I was able to prepare the draft of cross-examination outlines, so I would prepare all the questions and Peter and [co-counsel] Pat [McCann] would just look through them,” she notes. “It was kind of nice to see that it was my questions and my research that was being examined.”

Khoury also learned when to object and when not to object, what documents were objectionable and what line of questioning was objectionable during the trial. As a document liaison, she transferred all of the exhibits and documents through USBs or external hard drives. “Sometimes, we even gave our legal arguments hyperlinked for the judge through the USB stick, so there were a lot of USB sticks running around the courtroom,” she adds laughing.

The Crown actually preferred hyperlinks as opposed to paper tabs, Khoury explains: “...you just click on it and it pops up on the screen and everybody can see straight away as opposed to having it in paper form...”

The Faskens team would often communicate via e-mail during the trial so as not to disturb the proceedings and be efficient.

Even the jury had computers in the jury room with access to Wi-Fi. Documents and exhibits would be periodically uploaded to their computers for the jury to browse. “There was a huge emphasis put on to how we displayed and how we dealt with technology. The easier that it was for the jury, the more that they appreciated it. That was definitely a consideration when we were planning how to conduct this trial.”

Since the trial ended, Khoury has been hired on full time with Faskens. No doubt guided by the experience of a lifetime, Khoury has decided she has chosen the right path. Litigation is something she says she wants to pursue for years to come.

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