On a recent occasion, I listened to a family lawyer colleague talk about the circumstances of a case where the parties seemed to be really intransigent.
On a recent occasion, I listened to a family lawyer colleague talk about the circumstances of a case where the parties seemed to be really intransigent.
The case had had a number of twists and what seemed to me to be some bad behaviour on both sides. I was curious enough to ask how long the case had been going on.
The answer shocked me and left me feeling a sense of disgust. Seven years.
I do not need to know anything about the case to know that a system that permits a case to have a shelf life of seven years (and sometimes more) is a perverse system.
This can be easily deduced by thinking about the incentives that such a system creates.
In civil law — in every area from commercial litigation to family to personal injury — cases may go on for years with no resolution and no trial.
Cases that are set for trial, after many years of waiting, often or usually settle at the last moment, rather than the parties risking the cost consequences of a trial and paying the fees of civil lawyers for trial (who are basing their fees partly on the amount they get paid for simpler and less stressful tasks that occur during the years before trial).
How is it that, in criminal law, the lawyers are paid to go to trial, yet in civil litigation, the lawyers are somehow frequently paid not to go to trial?
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The answer to the above question is simple and obvious: The Rules of Civil Procedure and the system itself permit cases to go on for years.
Therein lies the problem. I was skeptical when the Supreme Court of Canada released R. v. Jordan, setting timelines in criminal matters, but I have been a convert after seeing how the behaviour of the actors in the criminal justice system has changed since the release of the decision.
Judges and Crown attorneys do not adjourn proceedings without very good reasons.
Judges especially understand that if there is a criminal case that does not resolve at an early stage, it has to run within the timelines set by the Supreme Court and must be set down for trial.
The attitude among all parties is: Either you plead guilty or you set the matter down for a trial and this decision has to occur quickly.
It is my contention that this attitude, by and large, produces the most just result for the accused and the complainants and witnesses in a criminal proceeding.
The unnecessary lengthening of proceedings in civil law has another perverse effect, perhaps worse than the fact that it has terrible mental and financial consequences for the parties involved in the litigation: It allows a party with deep pockets that is in the wrong to avoid paying for its wrongful conduct.
A party that is permitted to keep bringing motions, even ones with questionable merit, and avoid setting a trial date is able to potentially cost a party out of the litigation just by continuing to bring motions. This cannot be the intention of a functioning court system dealing with civil disputes.
The legal buzz term “access to justice” rather should be thought of as simplifying and shortening proceedings.
To achieve this, civil litigants must be forced, at an early stage, to either resolve the case or set it down for trial.
The cost of a claim can and should be put to better use with trial preparation and a real review and consideration of the issues and not delay tactics. This will not result in fewer cases resolving and more cases going to trial, as is the case in criminal law.
To the contrary, setting a case down for trial is the best way a legal system can incentivize a resolution.
Facing down a trial focuses attention on whether the litigant has a good or bad case and what the risks are.
It is precisely the exercise of preparing for trial that will focus a party’s attention on whether a person has a better chance of achieving their objectives at trial or by resolving with the other party.
Permitting a party to extend the litigation without going to trial allows a party to kick that issue down the road.
Criminal cases frequently resolve at or just before trial, either with a guilty plea, a plea to a lesser offence or a withdrawal of the charges.
It would be the same in the civil system, except that likely a greater percentage of cases would resolve because of the cost consequences and because the stakes to the litigants do not involve the liberty of the parties.
There is an easy way to improve access to justice in all realms of civil disputes in the province.
Learn from criminal lawyers and the Supreme Court’s attitude in R. v. Jordan: There should be no more mandatory mediation, the parties should be free to pick up the phone and engage with each other at any time and the court or a judge does not need to be involved.
There should be no more motions; any issues that skirt the main issue can be addressed with a pre-trial motion argued just before the trial.
The system must force the parties to set the case down for trial as soon as possible. Lawyers will not be able to bill to not go to trial and their fees will be adjusted. Litigants with deep pockets will not be able to “motion” (and motion and motion) a party into submission.
Cases will resolve more quickly as the parties will not be permitted to delay bad facts too far into the future.
The process will be shortened and simplified.
The system, as currently constituted, may be a good system for a small percentage of lawyers and a great system for deep-pocketed litigants, but it is the worst possible system for everyone else.
The rules that have allowed a system of endless motions and mediations might have been well intentioned, but it has not worked. If people truly want to improve access to justice, the solution is simple: There should be no more motions and no more mandatory mediations. Just do as we do in criminal law (especially since Jordan) and set the damn thing down for trial and argue it.
Ryan Handlarski is a criminal lawyer practising in Toronto and surrounding areas since 2009. He can be reached at [email protected] or 416-837-4500.