Law Times

PAGE 12 FOCUS Class action lawyers pooling resources Trend toward more firms collaborating BY IAN HARVEY For Law Times seems to be the theme — whether it's attracting more plaintiffs or more counsel. Certainly the plaintiff bar is seeing a trend towards more firms collaborating with each other, pooling their resources to draw on each other's expertise, as they wrestle increasingly com- plex matters to the mat. And it's not just expertise. W There's strength in numbers, since it spreads the cost of what are of- ten lengthy battles between more firms and in doing so reduces the financial exposure plaintiffs carry. Finally, knowing that the large national full-service firms are adding muscle to their own litiga- tion and class action departments means those boutique partner- ships need to counter the some- hen it comes to class action litigation, the more the merrier times intimidating experience of standing in court to face a defence team with a dozen or more seats. Given the growing interest in class actions, it was clear that the big-gun firms would also make moves of their own. Since full-ser- vice firms are more likely to have conflicts on the plaintiff side, they're obviously well positioned for defence. It's not just the billables, insists CARTHY_Ontario Annual Practice 4/9/08 11:37 AM Page 1 Freya Kristjanson, who runs Bor- den Ladner Gervais LLP's class ac- tion department, it's an extension of a relationship the firm already holds with large corporate clients. As such, it opens the doors to discussions emanating from con- tracts, labour, and other areas of the practice, allowing the firm to offer counsel on horizon issues prior to the launch of new prod- ucts, marketing campaigns, or new services. BLG has about 10 lawyers dedicated to class actions with an- other 25 litigators, and, of course, a house full of subject-matter experts across all sectors spread across Canada. "It's not just the expertise in class action, it's about working with a client before an action commences, in the area of con- sumers, contracts, and marketing, and even the emerging area of labour and employment class ac- tions over time, which have creat- ed a huge chill," says Kristjanson. Also, she says, class actions are increasingly crossing jurisdic- tional boundaries, both provin- cially and internationally, which well positions the large national firms that either have a direct presence in those forums or have a collaborative arrangement with a local firm. "Certainly it's been wonderful for the Seven Sisters and other big firms," says Tony Merchant, the former Saskatchewan MLA who runs Merchant Law Group with a series of class actions on the go across Canada. "They can send "It can be intimidating, and I do feel like Rambo sometimes. They have everything money can buy and they have this opportunity to help each other — through the corporate offices — the thinking and all the time they're build- ing up this bank of class action knowledge by every defence brief they write. They attain this econ- omy of scale." 'There ought to be an opportu- nity in Canada to take a leader- ship role and to work together collaboratively, rather than sticking needles in each other's eyes,' says Joel Rochon. huge crews of people to court." In one case, he recalls, 22 law- yers lined up against him and a colleague on the plaintiff side. Among those in demand as a collaborator is veteran Harvey Strosberg, of Sutts Strosberg LLP in Windsor. He makes no mistake about the risks involved. "You can bet the defendant's billings are always paid long be- fore the plaintiffs see anything," he notes. 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Both the new and old versions of the forms are in the Forms and Table of Cases volume of the book and on the CD-ROM. , Rules of , with annotations of the most expertise — medical malpractice, pharmaceuticals — means it's in their own interests for firms to reach out — though sometimes, Joel Rochon of Rochon Genova LLP notes, collaboration isn't al- ways a smooth process, especially at the outset when there's some jostling for position among the plaintiff bar. Sometimes, he says, com- mon sense can prevail. "We were lining up on the front line with Strosberg, REKO [Roy El- liott Kim and O'Connor LLP] and Lerners in Meditronics and we'd all made our submissions for carriage, but even before the decision was handed down we realized we should work it out. And we held meetings and that's what we did and it has worked out well." Still one of his frustrations re- mains the continuing battles of carriage and leadership roles in class actions. This, he says, sug- gests that Canadian authorities should look at creating some rules around the process. "There ought to be an oppor- tunity in Canada to take a lead- ership role and to work together collaboratively, rather than stick- ing needles in each other's eyes," says Rochon. He points to the U.S., where a paper process of the multi-district litigation panel settles carriage and leadership issues with a lim- ited avenue of appeal. It's a concept first proposed by Vancouver's Ward Branch, of Branch MacMaster in Vancouver, as the "national carriage motion" and now has the Uniform Law Conference of Canada urging a national database registry of class actions. "In the absence of anything else, I think that's something we should look at, because the Americans have been at this for a lot longer than we have," he says. "We need something — either a federal Vol. I Hardbound (Main volume) • Approx. 1,850 pp. • Vol. II Perfectbound (Forms and Table of Cases) • Approx. 900 pp. • CD-ROM (Forms and cases) Published May each year • Includes both volumes and CD-ROM Standing order $87 • P/C 0645140000 Current edition only $92 • P/C 0645010999 • ISSN 0318-3556 statute or something which will bring it together so that the provinces can employ this kind of panel." Protracted battles over carriage only invoke delays and benefit the defendants, he says. For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. www.lawtimesnews.com LT0414 "Collaboration is about trust, competence, resources, motiva- tion, and time," he says. "The good news is that Sas- katchewan has passed a national registry as recommended by the See It's, page 13 APRIL 14, 2008 / LAW TIMES T .A. Derry Millar and J he Late Honour W able J ames J. Carth y eff G. Co , w an Courts Legislation Act, of J ustice Act, Evidence Act, Limitations Act, 2002 2006 Statutory P o wers Procedures Act

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