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Law Times • June 7, 2010 Does gov't have a right to expedited trials? lowed halls of justice where most lawyers would prefer to spend their billable time. To put it politely, they're a L zoo. Too many cases with too few resources translate into a crush of people, many of whom are acting for themselves in an at- mosphere that teeters from mass confusion to utter chaos. Part of the issue is that the prov- ince downloaded administration of provincial offences to the mu- nicipalities in 1999 with a proviso to look at streamlining procedures once the transfers were complete. A working group was struck in 2006, and in January 2009 a con- sultation paper started making the rounds for comment. The 31-page document has all kinds of recommendations, includ- ing greater use of audio and video to speed things up, an early resolu- tion process, more licence suspen- sions, and increased fines. There's also a recommendation the Ontario Association of Chiefs of Police see as an opportunity to save a bundle of money. It has endorsed and recently took to Queen's Park a suggestion to change the Provincial Offences Act to allow police officers to testify via affidavit in some cases, which would negate the need and, more specifically, the cost of having them attend in person. Marco Visentini, a lawyer and adviser to the police chiefs' asso- ciation who works for the Ham- ilton Police Service, says so many of the cases could count as admin- istrative that the requirement for viva voce testimony is redundant and represents a huge drain on re- sources from overloaded munici- pal policing budgets. "We're talking low-level, techni- cal offences such as speeding," says Visentini, who notes the cumula- tive cost for all those officers hang- ing around court hallways is "in the millions of dollars." The association says the list of circumstances where written af- fidavit evidence should apply involves cases where "certified documents exist," such as driver's licences, graduated licensing con- traventions, and permits. Further, it endorses amendments to elimi- nate a "challenge of the officer's evidence." Instead of the officer receiving notification to appear in court, the defendant and prosecu- tor would show up on the first date to review the written allegations in front of a justice of the peace. In cases in which the court finds live evidence would go fur- ther than written affidavits and "if the defence requires" the at- tendance of the officer, it could adjourn the matter. Visentini says the public at large knows that taking a provincial of- fences summons to court is a "roll of the dice" since there's a chance the officer involved could be sick or unavailable, thereby making the chances of a dismissal fairly good. "With services like the Ontario Provincial Police on et's be frank here. The provincial offences courts are not the hal- Inside Queen's Park By Ian Harvey Highway 401, who cut across many jurisdictions, it's a night- mare," he notes, adding that if certified documents exist and evidence cannot be disputed, the testimony should be acceptable by affidavit. If you see a massive red flag waving around this idea, you're not alone. Christopher Wayland, a crimi- nal lawyer and civil litigator with McCarthy Tétrault LLP and vice chairman of the Ontario Bar As- sociation's criminal justice section, isn't too comfortable with the concept. "We discussed this with our OBA group, which includes crown prosecutors, and we were unanimously opposed," he says. While the idea seems expedi- ent at first blush, it's a slippery slope that brings into question where the line between indisput- able evidence and administrative charges begins and ends. Then there's that sticky principle thing. Despite the widespread use and acceptance of photo radar and red-light cameras, it still rankles when a machine assembles and dis- seminates the evidence, doesn't it? In truth, I suspect we've been sliding down the slippery slope for some time. Between the cam- eras and the hoops the public must jump through to challenge a parking ticket or provincial of- fences notice, it's been a slow but certain journey. As Wayland quickly points out, at what point do we draw the line? Who or what test ascertains an "ad- ministrative matter," and how long will it take for the system to address more serious matters through writ- ten evidence? The adage that you never know what you're going to find out un- til you ask the question is a golden principle in life as well as the court- room, and defence lawyers are nev- er shy about asking questions. How then, asks Wayland, are defence counsel going to proceed when the evidence is on paper? In- stead of streamlining the process, it will add more hurdles because in all of these cases, lawyers will have to ask for the court's permission to call the officers in order to examine them on their written submissions. I suppose you could say it's a twist on letting the punishment fit the crime in that we're sup- posed to tailor the process to fit the budget. But given that this is an area that touches most Ontar- ians' lives directly, is this really the kind of state-controlled McJustice we want to deliver? LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. COMMENT PAGE 7 Getting client feedback is easier than you think BY CATHERINE MITCHELL For Law Times C lient satisfaction is essential to the survival of your law firm. According to The BTI Consulting Group's 2010 corporate counsel trends report, clients have a financial investment with their pri- mary firm. But they have an emotional invest- ment with their first recommended firm. When your clients see you as both, you've met the gold standard in measuring client satisfaction. The report goes on to note a growing trend of firms reaching out to their client base to gather feedback through formal surveys. In 2004-05, only 40 per cent of firms surveyed their clients. That number rose to 56.4 per cent in 2006-07 and is expected to be higher in future polls. But is a firm-wide client survey a panacea? I'm a firm believer in the value of combining firm-wide initiatives with practical approaches lawyers can implement in the natural course of serving their clients. Asking for client feed- back is a perfect example. There are a couple of things you need to know about asking for client feedback. The first is that firm-wide client surveys work best when complemented with asking for feedback on a direct and regular basis. Surveys are a great measure of your firm's performance from a cli- ent's point of view. They offer a confidential medium for clients to provide feedback that can be used by management to enhance inter- nal procedures and methods that are focused on improving performance and quality. They're also good for several other reasons, including the fact that they help you flag possible prob- lem areas and clients; they keep you improving your services and products; they tell you what your clients value and what they're willing to buy; and they provide you with data to dem- onstrate how satisfied your clients are. Despite all of these important value propo- sitions, though, are they enough to help you understand how you specifically are doing in serving your clients? I don't think they are. But if your firm already conducts a formal cli- ent survey or is going to implement one, you can supplement the effort by reaching out to your clients and asking them to watch out for the communication about the survey and en- couraging them to complete it. Then, get into the habit of asking for feed- back on a regular basis — while you're serving the client. When you ask directly and regularly, this ongoing dialogue builds trust and loyalty because clients feel heard and appreciated. Doing so also has the power to insulate you from the impact of a mistake, if you make one. Mistakes are inevitable; however, if you have maintained a dialogue and therefore developed a degree of trust with your clients, there is much more tolerance for mistakes. In fact, it's a hu- man trait to be even more supportive of trusted advisers when they own up to their mistakes Web Correspondence PAST BEHAVIOUR MATTERS The major difference that justifies the conclu- sion that there is no reasonable possibility of conviction, and thus that the case is a waste of taxpayer money to pursue, is the history of Darcy Allan Sheppard being aggressive to mo- torists. There was a case decided in Ontario www.lawtimesnews.com and do whatever is necessary to correct them. The second key thing to know is that your Speaker's Corner clients want you to ask for feedback. So get over your fear about asking. According to the BTI report, in fact, 63 per cent of counsel surveyed don't share feedback with their law firms un- less they're asked. That means you have to. In fact, the corporate counsel panel members who spoke to a room full of Toronto legal market- ers at a Legal Marketing Association luncheon in October 2008 noted they want you to ask for feedback directly. If you're going to do so via a third party in the form of client surveys or inter- views, they want you to advise them in advance so they know they're coming. They also said they weren't necessarily more candid with a third-party method. It seems, then, that you may be falling be- hind if you're not asking for feedback regu- larly. But if you're not sure how to engage in this type of conversation or are afraid of what you'll find out, there are some proven how- to strategies, including knowing when to ask. There are two times in particular that work especially well for asking for feedback: • Opening a new matter. Think about the process you go through when you begin a new file, even if it's with an existing cli- ent. If you're not already doing so, you can easily do a few things that will establish ex- pectations and create an environment for receiving ongoing feedback. Let your clients know, for example, that you're interested in receiving feedback throughout the process of the file, not just on what you're doing but on how you're doing it, and that if at any time they wouldn't feel comfortable being a reference for you on a future matter, to ad- vise you right away. Get their agreement to do so. This invites them to an open dialogue with you throughout the matter. • Closing a matter. This is a similar approach to the first one but conducted at the end. Ask your clients how the matter went for them, what you could have done better, and what did and didn't work so well. Try these strategies and see what happens. I guarantee you'll be on your way to building a stronger relationship. But always remember to be specific when asking for feedback. Sim- ply understanding you were great, while nice to know, isn't enough. Feedback isn't about seeking praise; it's about understanding your value proposition. So if you get generic feed- back about how great you were, turn it into information you can use by asking what you specifically did to make the client say that. What's key is not being afraid to ask, directly and regularly, what your clients want from you. They're more than willing to tell you what they think. It's a differentiator if you do. LT Catherine Mitchell is a client development skills coach and principal of One Voice Productions Inc. She can be reached at 416-562-3711 or coach@ onevoiceproductions.ca. years ago that stands for the proposition that evidence of previous similar conduct, even when not known to the ac- cused, is admissible to establish defences against the charges. Since Sheppard has a long history of intimidating drivers in similar cir- cumstances, Michael Bryant's instinctive reac- tion to the aggression against him is more be- lievable than would otherwise be the case. Comment by Will on lawtimesnews.com about "Bryant case a high mark for justice system."