Law Times

Law times • OctOber 5/12, 2009 FOCUS PAGE 13 O'Brien ruling spurs debate on courtroom blogging BY JULIUS MELNITZER For Law Times allowed journalists — indeed anyone — observing the crimi- nal trial of Ottawa Mayor Larry O'Brien to use electronic devices to report live on the proceedings via Twitter and other portals. O'Brien had pleaded not guilty to two charges of influ- ence peddling related to alle- gations that he offered to help fellow mayoral candidate Terry Kilrea get a position with the National Parole Board in return for dropping out of the 2006 municipal election race. The court found him not guilty of the charges earlier this year. While Cunningham was I careful to say that his ruling applied only to O'Brien's trial, some lawyers are concerned the ruling will have an adverse im- pact on the dynamics of litiga- tion and court reporting. "In controlling the process of the courts, judges will have to be very careful to balance a de- sire for openness and the main- tenance of the courtroom as a public space with preservation of the seriousness of the courtroom atmosphere," says Darryl Cruz of McCarthy Tétrault LLP. The debate over courtroom blogging is different from the issues surrounding cameras in the courtroom, which focus on intrusiveness and the impact on the persons involved in the trial. From a lawyer's perspec- tive, Cruz maintains, live blog- ging in a courtroom is fraught with dangers for the process because the individuals using the technique are multi-tasking and doing so in real time. "The difficulty with Twitter, for example, is that it consists of instantaneous snippets that don't provide a full report of what's going on," Cruz says. "It's like taking a sound bite or a quote lifted from a speech as represen- tative of what's happening." In other words, courts are not and should not be a forum for in- stantaneous reporting. "Why do we need that right through everything in our life?" Cruz asks. "When you start treating legal proceedings as if they were sound bites for TV, you're encroaching on the seri- ousness, solemnity, and dignity of the courtroom." The lawyer points out that part of the court system's beauty is the fact that what comes out on the first day frequently bears no resemblance to what happens during the rest of the trial. "That makes the rush for in- formation less important than the need for accuracy and so- briety," Cruz says. "Real-time reporting raises a significant risk of misstating the ultimate evidence that is the foundation for the court's decision." Besides, Cruz says, observ- ers can't properly understand the evidence unless they're fully attentive. "People who are blogging Untitled-7 1 Often imitated, never duplicated. The McKellar Structured Settlement™ For almost 30 years, McKellar has set the standard for excellence in structured settlements. With over 250 years of combined claims, legal, accounting and structure expertise at your disposal... Why settle for less? n early May, Ontario Supe- rior Court Associate Chief Justice Douglas Cunningham But Paul Schabas, a media lawyer with Blake Cassels & Graydon LLP, says Cunningham's ruling merely allows journalists to do what they're supposed to do. "A reporter's job is to provide fair and accurate reports even as an event is unfolding," he says. "The more immediate the re- porting is, the better job it does of putting someone into the courtroom if they can't be there in person. Reading a live blog is the closest thing to being there if video coverage isn't available." The debate over blogging 'A reporter's job is to provide fair and accurate reports even as an event is unfolding,' says Paul Schabas. while the evidence is going on are not paying careful atten- tion, so the risk of inaccuracy is high, and inaccurate reports can be very damaging for ev- eryone involved in the case. People who read news online may want it quickly but they don't want the wrong news." from the courtroom has received a great deal of publicity since Johnathan Powell, a Wal-Mart photo department manager who served on an Arkansas civil jury, posted details of his experience from his cellphone. After the jury returned a US$12-million verdict against a Little Rock construc- tion company, the defendant launched an appeal based partly on allegations that Powell's posts betrayed bias before the jury had finished its deliberations. In the United States, some judges are increasingly allowing blogging, tweeting, and audio streaming. Lawyers there are concerned the posts might affect jurors' impartiality. But judges who allow the practices have responded that they trust jurors when they instruct them to avoid mainstream media reports that relate to the case, and there is no reason not to make the same assumption in the case of new media. "Besides, courtroom blog- ging can be much more accurate than a 10-inch story in a news- paper," Schabas says. Indeed, one U.S. district judge has gone so far as to allow a we- bcast of a hearing involving the Recording Industry Association of America. The organization appealed on the grounds that the webcasting would interfere with its ability to get a fair trial. But 14 news organizations filed a joint amicus brief in the U.S. appeal court arguing the webcast was in the public interest. The debate, therefore, con- tinues. E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com LT Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM www.mckellar.com GUELPH 1-800-265-8381 McKELLAR STRUCTURED SETTLEMENTS INC. HALIFAX EDMONTON 780-420-0897 www.lawtimesnews.com 1-800-565-0695 USA 1-800-265-2789 9/8/09 12:11:03 PM

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