Judge calls out lawyers for lowballing trial estimates

The Ontario Court of Justice says it’s taking steps to better assess estimates of trial times after a judge in Halton region lamented “a chronic problem” of counsel lowballing the time it would take to complete a matter.

In obiter comments at the end of two separate rulings, Ontario Court Justice Lesley Baldwin said trials were running for much longer than counsel estimated they would, resulting in delayed justice for litigants.

In R. v. Smith, Baldwin took issue with a trial scheduled for one day that ended up taking five days. “Four witnesses were noted for the Crown; one possible witness for the defence. The matter was set for one day. This case took five days of trial time. Nine witnesses were called. Three Charter applications were filed. Written and verbal submissions were received throughout this long trial, which started April 16, 2013 and finished today, November 6, 2014.

“This is yet another case of counsel seriously underestimating the time their trial will take from start to finish.
This has become a chronic problem in Halton Region that has resulted in reserved judgments being
delivered months after the evidence in a trial has ended due to the continuing pile-up of reserved judgments.”

In another matter decided around the same time, Baldwin reiterated her concern. “Counsel estimated 2.5 days of trial time to complete the matter. This is another seriously underestimated trial that has led to reserved judgments being delivered with delay here in Halton Region. Justice is not well served when it is delayed,” she wrote in R. v. Ivashinnikov.

Jane Warwick, communications officer for the Ontario Court of Justice, says the court is aware of the issue. “Steps are being implemented in several court locations in the central west region to better assess hearing time estimates given by both Crown and defence counsel through a focused judicial pretrial regime,” said Warwick.

“Alternative scheduling practices are also being considered. Bench and bar meetings are occurring to discuss the options.”

Criminal lawyer Todd White says it’s tough to estimate the time it will take to see a trial from start to finish.

“It is very, very difficult to estimate how long a trial would go simply because of the volume of evidence that is now presented in most criminal trials. It’s no longer simply calling the main witnesses. The Crown now calls expert evidence and forensic evidence and cellphone records and cell tower records and videos. There’s a much greater volume of disclosure that defence counsel gets,” he says.

“It’s very difficult to estimate how long it will take for the evidence to be presented and very difficult to estimate how long the examinations and cross-examinations will take.”

It’s not a new issue but it has become more important given the backlog in the court system, says White. “If you’re setting a trial date now in any provincial court in Ontario, you’re probably looking at the first six to nine months down the road for the first available date and that gets into unreasonable delay territory because on top of that, it takes four to six months to get complete disclosure from the police to the defence.

“So if the trial estimate is off — say a trial is estimated to take two days and it’s not completed in two days — it may be three, four, or six months down the road before you get further dates because of the backlog of the justice system.”

When it comes to predicting trial times, it’s better to overestimate slightly, says White, who notes greater discussion between counsel as to what to expect during the proceedings would help as well.

“Most times, a Crown attorney will set a date for trial without having viewed the entire file, without having made decisions as to exactly how many witnesses they’re going to call,” says White.

Even in minor criminal matters, there may be five of six police officers involved, according to White, who suggests counsel should take a more in-depth look at the evidence and decide what evidence and which witnesses they’ll call prior to setting a trial date.

The volume of disclosure has expanded in the last five years with the increasing number of devices police can search, he points out.

“It used to be that you’d get a case and it was the size of a binder. Now, every case I have is a banker’s box, at least, because they’re getting phone records, they’re getting videos, they’re getting notes, they’re doing computer searches, computer forensic testing,” he says.

Criminal lawyer David Bayliss says the issue is less of a concern in the Superior Court of Justice where he says lawyers are “pretty good” at estimating how long it takes to see a trial from start to finish. “For any case that’s gone over, you can find a case where counsel have done it in less time,” he says.

“It’s a different kind of problem at the Ontario Court of Justice,” he adds. “You’re talking about shorter matters and it’s always difficult to estimate how long cross-examinations will take. It’s heavily dependent on how the witnesses answer the questions.”

Counsel are trying to be efficient when they estimate trial times, according to Bayliss, who notes he doesn’t know of a single lawyer who would intentionally lowball their prediction.

When time estimates are wrong, it hurts lawyers as much as anybody else, Bayliss notes.

“It’s very difficult for a lawyer in the Ontario Court of Justice if a time turns out to be wrong. . . . Then the lawyer has to prepare for a second day, so it’s very time-consuming and preparation intensive.”

Unforeseen events during trials are just “the nature of the beast,” he adds. “It does sometimes happen that cases turn out to be a lot more complex. Issues arise sometimes in the course of a trial that have to be dealt with. But I don’t see it as a chronic problem in my experience.”

Judges also have a role in estimates for trial times, especially where there has been a judicial pretrial because, says Bayliss, “no estimate is set unless a judge signs off on it.”

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