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Lawyers need to stand up to clients: judge

|Written By Michael McKiernan

Lawyers need to stand up to their clients if the concept of proportionality is to hold any weight in the civil justice system, says an Ontario Superior Court judge.

‘There is something seriously wrong with a system that cannot determine summarily whether or not a case should be determined summarily,’ says Sean Dewart.

Justice John Murray was on a panel as part of the Warren K. Winkler Lecture on Civil Justice Reform held at Osgoode Hall last week. The annual event, now in its fourth year, focused on the theme of procedure, proportionality, and professionalism.

“Lawyers have a professional obligation to identify rationally achievable objectives and manage expectations,” Murray said.

“It means being selective, being constrained to make only meritorious arguments, not arguments that clients might want to hear, and it means rejecting tactics that result in long-term pain for clients or their opponents.”

Reforms introduced on Jan. 1 this year aimed to encourage proportionality in litigation, thereby linking the time and expense spent on matters directly to the amount at stake.

They limited oral examinations for discovery to seven hours per side and introduced a more stringent test for the relevance of documents for discovery. All parties must also agree to a discovery plan within 60 days of the close of pleadings.

In addition to his comments about lawyers, Murray, who sits in Milton, Ont., said judges also have a role to play. He encourages them to exercise more discretion in deciding costs and limiting the scope of litigation.

“We are too concerned with interfering with costs,” he said. “And we have a reluctance to intrude into cases to ensure early identification of issues which need to be tried and those that don’t.”

Linda Rothstein, managing partner at Paliare Roland Rosenberg Rothstein LLP, said that while lawyers enjoy talking about the professional courage needed to fight for people without a voice, they also have an obligation to invoke a different, less glamorous type of courage in dealing with awkward clients: “The courage to tell your client the absolute truth about what it will cost, why it will cost that, and why their arguments perhaps don’t make sense.”

According to Rothstein, the fear of missing a vital piece of information, combined with the extraordinary depth of case law in any given area, make it difficult for lawyers to know where to draw the line on their preparation for cases.

“It’s never been easier and never more tempting to produce volume, to be exhaustive, to get under every stone,” she said.

But that’s no reason to abandon the concept of proportionality, she added. “We have to get better at sifting relevant from irrelevant, important from unimportant, persuasive from unpersuasive, and it’s hard to do.”

Superior Court Justice Paul Perell also weighed in on the issue, saying lawyers who practise in that way reap the rewards because their arguments are much more persuasive for judges. “Proportionality adds value rather than being a lesser model for the administration of justice,” he said.

Quebec reformed its own Code of Civil Procedure eight years ago in an attempt to reduce delays and control costs with proportionality at the heart of the changes. But François Rolland, chief justice of the Quebec Superior Court, had a warning for those in Ontario who are hoping to see swift results here.

“It takes a generation to change mentality,” he said. “So far, we have not been successful. When the young lawyer is practising litigation, he ends up fighting in court, spending money, and tends to forget the rule of proportionality.”

Despite the bar’s support, Rolland said the nature of the adversarial system makes it easy to undermine a proportional approach.

“There will always be one more procedural step or one more issue to be raised,” he said. “I have noticed that in law faculties and at bar schools, we are still teaching lawyers to become warriors instead of being problem solvers.”

But Sean Dewart, a lawyer with Dewart Gleason LLP, said the profession needs more help from the courts in order to embrace proportionality.

He pointed to a case in which his firm brought a motion for summary judgment in a case. The difficulty of scheduling the motion prompted the judge to note that she could get a trial date much sooner.

According to Dewart, while summary judgments should be a key plank of a proportional civil justice system, his case showed they’re actually skewed towards the old way of doing things. “There is something seriously wrong with a system that cannot determine summarily whether or not a case should be determined summarily,” he said.

As a result, while he supports the concept of proportionality, he’s calling for more “concrete, systemic, prescriptive procedures to control the process.”

Ontario Chief Justice Warren Winkler also took the opportunity during the event to unveil a new annual award for writing on professionalism or legal ethics.

The award, sponsored by Rueter Scargall Bennett LLP, will go to the Ontario law student who writes the best essay on the subject and comes with a $3,000 prize. Two runners-up will also receive $1,000. The deadline for papers, which must be between 2,000 and 6,000 words in length, is Feb. 27.

  • David V Goliath

    Robert S. Doggett
    We are the little guy up against the big guy. Going on ten years since started and the 4th discovery date has not been set. This is a Crown owned Corporation and our lawyer is now convinced that the Government is trying to delay and run cost up. It is hard to believe that Crown employees can lie and than say opp's I forgot. They will not answer quetions about documents they produced. Our court system allows this to happen when you have the money.
  • SCC and Pre-Nups?

    Consider this regarding Pre-Nups:

    Our obligation, firstly, is to effectively assure that there has been a somewhat exhaustive review of the assets, liabilities and means of the parties prior to entering into a prenuptial agreement - which is fine, but explain to the client when they walk in for a quick signature why discovery needs to be accomodated at some significant expense for an agrement they have already made between themselves.

    Secondly - even when an agreement has been entered into - the implication of our Supreme Court is that summary judgment will no longer be possible as in order to allow the court to rule on the adequacy of the agreement, they need to review how "fair" the agreement is, which means running a trial within a trial to allow the court to decide if the ultimate outcome would be at odds with the result of the agreement.

    So pardon me if I choke a little when I hear the bench talking about "proportionality".

    I will, thank-you very much, be covering my *ss and ignoring the commentary above that I need to be "proportional" in my efforts on behalf of my client both when entering into agrements and when seeking to avoid them.
  • Lawyer

    Proportionality is unlikely to be embraced by the lawyers acting for the Goliath side of a David v. Goliath fight. The big party likes to exhaust the other side's resources through a paper war long before the case gets to be decided on merits.
  • lawyers need to stand up to clients:judge

    Paul Courey
    Proportionality is an obviously good idea. I trust that LSUC and LawPro will sign on and not leap to a determination of negligence because counsel makes a determination in consultation with the client that endless motions and research are unwarranted, but the client later has a change of mind because of a lack of sucess.
    Also, in public law litigation, who will instill this virtue in government lawyers and their clients who often use a lack of proportionality as their chief weapon?
  • Guest
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