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Focus: New best practices seek reboot of civil trials

|Written By Judy van Rhijn

Without any injection of public funding or significant changes to the Rules of Civil Procedure, The Advocates’ Society is hoping to reshape the civil trial system with its new best practices for civil trials.

‘I foresee that as part of their marketing, lawyers will say they’ve signed an undertaking to adhere to best practices,’ says Brian Gover.

The best practices respond to a growing realization that the migration of matters out of the court system in favour of dispute resolution comes at a price: the loss of the open-court principle and the ability to contribute to the evolution of the jurisprudence.

“It’s in the real public interest to retain a vibrant civil trial system,” says Brian Gover, a partner at Stockwoods LLP in Toronto who was the chairman of the civil trials task force that launched the best practices in June 2015.

Gover quotes the concerns raised by Associate Chief Justice Frank Marrocco of the Ontario Superior Court of Justice when he challenged The Advocates’ Society’s board of directors to do something about the state of the civil trial system. “There’s a general recognition that excessively long trials consume scarce judicial resources to the point that timely access to the courts is compromised,” he says.

“The vanishing civil trial is often spoken about in Canada and the U.S. and to some extent in the U.K. largely because of the cost of litigation and the pressure placed on a publicly funded system by criminal and family law. Justice Marrocco believes that the current decline may render the next generation of lawyers and judges incapable of trying complex civil cases.”

The best practices stem from a collaborative model featuring discussions with the bench and the bar and a January symposium that attracted more than 100 judges, lawyers, and legal academics.

“We focused on where we thought we could really make a difference: case management, trial practice and management, use of documents and technology, and expert evidence,” says Gover.

The guidelines stress access to judges as case managers in order to encourage the resolution of interlocutory disputes and avoid pretrial and trial motions. “It was interesting to hear judges say that civil motions are by and large a waste of time,” says Gover.

“We seek to streamline them through active case management by teleconferences around 9 to 9:30 in the morning. The judges can make binding orders without the elaborate process around civil motions.”

During the consultation process, a clear consensus emerged that case management shouldn’t be mandatory. The hope is that even the availability of case management will discourage unco-operative or unreasonable behaviour by parties and their counsel.

“It’s important to reboot case management on an opt-in basis,” says Gover.

“We didn’t want it foisted on litigants who didn’t really want it.”

He recalls the problems with the Toronto region’s 15 years of case management. “Unless there’s a real desire to engage, it’s a waste of judicial resources.”

The guidelines envisage that case management and settlement meetings should be separate. The court should set the trial date and length as early as possible with a realistic timetable in order to reduce adjournment requests. They recommend having a single judge with some expertise in the subject matter manage each case and perhaps conduct the trial as well.

There’s a strong emphasis on the frequent use of teleconferences, videoconferences, and e-mails in order to resolve issues outside of the courts. “The real remedy is better communication between lawyers,” says Gover.

The best practices also encourage electronic trials in all of their forms with the goal of them becoming the norm rather than the exception. “Inevitably, that is where we have to go,” says Gover.

“That’s where I see the cases of the future. Some witnesses will be heard in the traditional way, others by video link or Skype. We just have to start trying cases differently. The civil trial of 2020 will look very different to the way they were heard in the ’60s, ’70s, and ’80s.”

Gover recognizes that some regional differences will arise. “Different courthouses have different capabilities, but there ought to be a minimum standard. I’d be very surprised if you couldn’t have a teleconference at any courthouse in the province. I’d be very surprised if there was any impediment to case management as we envision it. There is more work to do on the early assignment of a trial judge.”

An unusual recommendation is to conduct trials on a chess-clock basis with time allocated equally to the parties. Counsel can then allocate that time as desired among direct examination, cross-examination, and opening and closing submissions.

Gover remembers a judge who used an analogy that compared court time to being in the operating room.

“When you are using scarce public resources, you mightn’t have unlimited courtroom time. With better case management and better trial management, you should have a more realistic idea of the time a trial will take.”

Gover has seen this concept work well in administrative cases dealing with significant matters.

When it comes to expert evidence, the best practices try to fill the gap left by rules that allow for some inconsistency. They endorse consulting with experts early in the process, providing reports to the other side even earlier than the rules provide, and putting them into evidence rather than providing copies as memory aids as is routinely the case in the personal injury field.

All of the changes will require considerable co-operation from the judiciary. Gover stresses that the project followed a request from the judiciary with judges involved throughout the process. “It’s going to take some goodwill on the part of all involved. We are hearing that judges believe the best practices are practical and have the support of the judiciary.”

But Gover says it may be necessary for the courts to apply costs sanctions against litigants who blatantly fail to comply. “Best practices will come to be seen as an expectation on the part of the judiciary concerning the manner in which counsel advances its clients’ cases. I think any significant departure could well attract costs.”

There’s also an expectation that the best practices will be a living document. To that end, The Advocates’ Society, in conjunction with the judiciary, will be meeting with lawyers across the country in the coming weeks and months. “We recognize it isn’t a one-and-done proposition,” says Gover. “The best practices have to continue to evolve so that it remains a statement of the way forward.”

Gover is confident the suggestions will become the norm. “There may be some short-term pain for real long-term gain, but I think good counsel will embrace it. I foresee that as part of their marketing, lawyers will say they’ve signed an undertaking to adhere to best practices. Whole law firms will be saying they have committed to it.”

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