Take a look in the mirror

Pardon me if you think I’m being less than enthusiastic, but I’m not getting a warm and fuzzy feeling from the Ministry of the Attorney General’s December announcement concerning reform of the civil justice system.

I’ve practised law since 1978 and I’ve seen blitzes and purges and all sorts of reforms to the Rules of Civil Procedure.

I’ve seen the creation of fast tracks and simplified procedure actions, mandatory mediation, increased monetary jurisdiction of small claims courts, and yet through all of this the only constant is that we still have huge problems with costs and delays, primarily in the larger urban areas.

Please, don’t misunderstand me; I’m in favour of most of the reforms, but I don’t think we’ll come anywhere near solving the problems of delay and costs unless we realize the underlying source of the problems. It’s lawyers.

We lawyers have created the problem and the only way we’ll fix it is through severe behaviour modification. I know it’s not all of us, but look in the mirror and see if you aren’t guilty of behaviour that has served to increase costs or create delay.

It all starts before an action is commenced.  Do we investigate the possibilities of settlement?  Many lawyers believe that trying to settle early is a sign of weakness. They want to be tough lawyers. They want to be gladiators fighting in the arena.  They don’t want a good settlement at the “right” amount. 

They want to do better than that.  Costs aren’t a factor if they are acting for a client with large pockets.
When we draft pleadings for plaintiffs do we always insert realistic numbers or do we often seek inflated numbers and insert claims for punitive, aggravated, mental distress, Wallace, and other assorted damages as a matter of course? 

In acting for defendants in dismissal actions, do we assert cause without adequate investigation?  Do we use pro forma pleadings in personal injury cases?  Are our pleadings short and concise, pleading the facts, not evidence or argument or extraneous issues? 

I know that some complex cases merit lengthy pleadings but shouldn’t we have to justify any pleading beyond 20 pages?  
Do we always advise our clients about the rules of discovery? 

Do we help our clients find the relevant documents?  Do we produce an avalanche of documents hoping to bury the important ones?  Do we neglect to produce certain documents waiting for the other side to seek production?  How seriously do we take the certificates we sign in the affidavits of documents? 

How often are you, or is the other side, really ready for the examinations for discovery?  How many lawyers meet their clients 30 minutes before a discovery and then provide only the most basic instructions about how to answer questions? 

Preparing a client for a discovery must be done thoroughly and it’s time consuming but if you don’t do it properly then it will create more costs and delay. 

Lack of preparation for discoveries results in improper objections and that scourge of discoveries, the taking of questions under advisement.  This leads to unnecessary motions, further costs and delay.

We have to ask ourselves whether we are conducting discoveries and trials to show off for our clients or to advance our clients’ cases in an efficient, economical manner.  I suppose part of the problem derives from a lack of training, or ignorance, but a large part of this relates to ego and showmanship, doesn’t it? 

On the other hand, if you’ve never juniored at a trial or had a senior lawyer sit with you during a discovery perhaps there’s good reason for the ignorance.
Do we take the time to prepare a thorough request to admit? 

Do we sit down with our clients and prepare a proper response to the request?  Do we agree on a document or exhibit book with opposing counsel?  Do we do what we can to shorten both the examinations for discovery and the trials? 

A lot of what I’m talking about relates to the use of tactics designed to create expense and to delay the resolution of the dispute. 

A lot of this relates to a lack of civility.  It is a big problem so much so that a recent Ontario Lawyers Gazette focuses on incivility and features an article by Wendy Matheson, a partner with Torys LLP, which asks the question, “[w]hat is it about litigation, and litigators, that makes civility a
constant challenge?” 

So what do we do?  Yes, let’s make changes to the Rules of Civil Procedure to shorten lengthy discoveries and let’s increase the monetary jurisdiction of small claims courts, but that won’t modify the behaviour of the gladiators. 

I’m not a fan of complaints to the Law Society of Upper Canada save in the most egregious of cases.  We ought to be able to solve our problems without running to mother with every complaint of incivility or improper tactics.

Money appears to be the only effective way to modify a lawyer’s behaviour.  Costs normally awarded to a party whose lawyer has engaged in misconduct should be withheld or reduced more frequently.  Lawyers should be ordered to pay costs more frequently. 

Courts need to get tougher in their criticism of improper tactics and incivility.  Judges and Masters should be encouraged to make comments about lawyers’ misconduct and order that the lawyer provide an acknowledgment from the client that the client has read the comments.

It is only when we lawyers suffer financially and have to explain to our clients and partners why fees have been reduced or cannot be collected that behaviour modification will take place.  

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].

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