Electronic filing, remote discoveries and examinations, and
video-conference hearings are some of the ways litigation has
adapted to the current COVID-19 emergency. No doubt, some of these
new developments will remain once the crisis is over. What is sure
to persist, however, is the renewed focus on an old technology: the
written word. How can judges and advocates adapt to a system where
oral advocacy may no longer be the default mode?
The answer, according to Justice Lauwers in the recent appeal
decision in Welton v United Lands Corporation
Limited, is issue-driven legal writing. As he puts it:
It makes good narrative sense to inform the reader by setting
the context first, which involves telling the underlying story
briefly. But the real marshalling of the facts according to their
relevance and salience is only possible when the trial judge has
identified the live issues. In short, factual determinations and
descriptions should be issue-driven (para 59).
