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Law Times • February 2, 2009 Flawed document, flawed response L iberal leader Michael Ig- natieff read the budget and growled: "It's a flawed document." Flawed document deserves a flawed response, he figured. Better to let Prime Minister Stephen Harper live another day, rather than dumping him and risk having to form a coali- tion government with Jack Lay- ton and five or six New Demo- crats holding cabinet seats. Ugh! Harper breathed a huge sigh of relief. His fingernails would get a rest. No more worrying about being ousted in the Commons. Time to relax Steve, as buddy George W. Bush would say. Strange that on his first big de- cision as new Liberal leader, Ignatieff decides to vote for Stephen Harper — exactly what the Liberals dumped Sté- phane Dion for doing. Ignati- eff does the same thing and looks like a hero. Go figure. The reason is the difference in style. Ignatieff comes across as Mr. Tough Guy who can't be pushed around. Ignatieff bellows: "I'll put him on probation." OOOOH, very scary. What's that mean — proba- tion? Like what judges put crooks on? Or what errant pack boys get before they go out the door? Hardly. It turns out, reading through the fine print, that the Ignatieff "probation" ultimatum is a mousy little amendment — nothing more than asking Harp- er to provide "ongoing economic and fiscal updates." Harper has already been doing that every few months since he came to power. Might as well have asked him to comb his hair. The last regular Conserva- tive economic update was Nov. 27 when Finance Minister Jim Flaherty said for us not to worry. There were no serious economic problems, he said, and he would have an $800-million surplus in the 2009 budget. Boy was he ever off. Harper was quick to go on Ig- natieff's "probation." Who wouldn't if that's all it is. Within hours Harper had an- nounced that he was pleased to accept the Ignatieff amendment. Harper sent out his House leader Jay Hill who was remarkably frank: "You know, this is nothing new. This is just another mechan- ism for us to report back to the House of Commons about the progress that we intend to make." So true, Mr. Hill. So true. Did Ignatieff sucker himself? Viewed from the outside, yes. Then look at it from Ignatieff 's point of view. Why dump Harper right now, when the Liberals don't have either money or an organ- ization to beat Harper decisively in an election? And the alternative, should Governor General Michaëlle Jean choose it? Trying to run a coalition government with NDP leader Jack Layton beside him telling him what to do, with five or six NDP cabinet ministers to deal with. Not Ig- natieff 's idea of a good time. But if Ignatieff waits a year, The Hill By Richard Cleroux he figures, he can have the whole cake to himself. Hit the road, Jack. No wonder Layton and Bloc Québécois leader Gilles Duceppe were so furious. Duceppe was dripping vitriol. He put on a vi- cious satire mimicking Ignatieff giving in to Harper in March, giving in again in June, and again in December. John McCallum says he'll "watch them like hawks." Sure John. Dion said the same thing. It was the Harper Puffin that Dion never saw coming. By then it was all over. The trouble is that Harper being Harper can't resist going for the neo-con ideology even in a budget. Down in the fine print in the back pages of the budget, Harp- er sneaked in a clause attacking pay equity. That's the principle enshrined in law by which men and women are paid equally for work of equal value. The Harper clause would take away the right to contest pay equity cases in court. They have to win it in every case at the bargaining table. And women who don't have a union? Hey, too bad. It's the same loathsome medi- eval mindset of a clause that was slipped into the Nov. 27 econom- ic update. Economists calculate pay equity is worth about $3 bil- lion a year to Canadian women. Many private firms don't like having to pay women the same as men and have been putting a lot of pressure on the Harper government to hammer back pay equity. Back in 2007, George W. Bush knocked back pay equity in the U.S. and now Barack Obama is planning to bring it back. Harper has to get his clause passed before some smart Toronto women's lawyer discovers what's happening and organizes a move to block it. Ignatieff was probably too busy shouting how tough he is and how he'll put Harper's "feet to the fire" to spot the clause, but the Bloc Québécois did and it was the first off the mark denouncing it. The Bloc MPs will be making it their very first amendment to the budget along with protecting the right to strike of public ser- vants, and a national system of childcare to free women from the kitchen. Sounds familiar? Exactly where we were last Christmas before Harper pulled the plug on Par- liament to avoid a Commons defeat. Has Harper changed any? Are you kidding! LT Richard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux@rogers.com. COMMENT PAGE 7 U.S. system fundamentally different than Canadian BY STEPHEN MADDEX For Law Times south of the border. The judicial system in the U.S., in many important respects, is fundamen- tally different than the Canadian system. As such, although litigation anywhere is of- C ten time consuming, expensive, and fraught with risks under even the best of circumstances, becoming involved in a lawsuit in the U.S. pres- ents some unique problems. However, understanding some of the impor- tant features of litigation in the U.S. can go a long way to developing a winning strategy in the event a Canadian com- pany is forced to resolve a dispute in a U.S. court. Tip 1 – Know Your Jurisdiction: There are two distinct court systems in the U.S. — the federal court system and the state court system. Although federal courts exist in every state throughout the country, they all fall un- der the jurisdiction of the U.S. government and they all follow a uniform set of procedural rules. Federal judges are appointed and are permitted to serve until they choose to retire. By contrast, although there are some simi- larities from state to state, each state court sys- tem is unique. Depending on the state, judges can be either elected or appointed, and the pro- cedural rules and the substantive law for each state are often unique to that state. States also have their own constitutions, which can create rights and limitations much different from the U.S. Constitution. Further, the tendencies of judges and jurors in each county within a state can be widely dif- ferent, even if they are within relatively close proximity. As a result, trying a case in an urban county or in a suburban county that are close in distance could lead to very different results. Federal courts tend to be more formal than state courts, and because they are part of a broad, national system, the decisions made by federal judges tend to be more uniform and predictable than many state courts. In states where judges are elected, there may be more turnover of judges during each elec- tion cycle, which could lead to less uniform or predictable results. Therefore, because of the in- creased formality, uniformity, and predictability afforded by federal courts, lawyers who repre- sent defendants often feel more comfortable in Federal Court as opposed to state court. Civil lawsuits in the U.S. can be brought in either Federal Court or in state court. As long as the amount in controversy exceeds $75,000, a foreign company normally will have the right to have its case heard in Federal Court. Accordingly, when a dispute arises that could result in litigation in the U.S., Canadian com- panies should take into account the jurisdiction where the suit is to be heard. Having the oppor- tunity to proceed in Federal Court is an impor- tant option that should be carefully considered if it is available. Tip 2 – Always Retain Knowledgeable Local Counsel: Because each local jurisdiction in the U.S. can be unique, even from one county to the next, hav- ing the assistance of an attorney who normally practises in that jurisdiction can be invaluable. It goes without saying that Canadian companies anadian companies engaging in business in the U.S. undoubtedly face the pros- pect of becoming embroiled in litigation sued in the U.S. would want to hire competent attorneys to assist in their defence. However, merely hiring a lawyer in the state where the lawsuit is pending may not be enough. For instance, lawyers practising in Houston, Texas quite often retain lawyers in neighbouring counties to assist with courtroom protocol, trial preparation, and jury selection when they have cases set in those neighbouring counties. A local attorney who knows the tendencies of the judges and the pool of potential jurors in that location can provide insights that can make the difference between a favourable outcome and a disastrous one. Accordingly, when deciding whom to hire Speaker's Corner to represent them in a lawsuit in the U.S., Ca- nadian companies should carefully consider whether to hire lawyers (either exclusively or in addition to other lawyers they may wish to hire) who normally practise in the county where the law- suit is pending. Tip 3 – Understand The Costs Associated With Pretrial Discovery: The U.S. system relies heavily on broad pretrial discovery. The purpose of pretrial discovery is to provide both sides a full opportunity to gather information from the opposing party (as well as from non-parties) that could be used to prove their case; their opponent's case; or that could be used to damage their opponent's case. Litigants typically engage in discovery by obtaining documents from their opponent and from other witnesses, examining witnesses and party representatives in pretrial deposi- tions, and exchanging other documents and information. The scope of information that is discoverable in the U.S. is extremely broad. Generally speak- ing, as long as the information sought could lead to the discovery of other relevant information, the information is probably discoverable. As a result, even in relatively straightforward disputes, it would not be unusual for a litigant to be required to produce tens of thousands of documents. In more complicated disputes, quite often millions of documents are exchanged. Further, given that most information is now stored in digital form, whole computer hard drives are often scanned and copied. All elec- tronic documents, such as e-mails, are also po- tentially subject to discovery. The process of gathering and producing a large volume of documents can be time con- suming and extremely expensive, resulting in extremely high legal costs and lost worker production. Moreover, typically any person who has information pertaining to the dispute will be examined by the lawyers in a pretrial deposi- tion. At a minimum, every witness who could be called to testify at trial almost certainly will be deposed before trial. As such, in many instances, the list of poten- tial witnesses could be several dozen or more. This means that dozens of pretrial depositions often occur. Because depositions are time consuming and expensive, even in a relatively simple case, the costs of conducting pretrial depositions could easily be $50,000-$100,000. In a more com- plicated case, those costs could be substantially higher. Because the scope of discovery is so broad and the costs to engage in discovery so high, a typical tactic employed in U.S. litigation is to See More, page 8 Correction Peter Biro's name was incorrectly spelled in the Jan. 26 Speaker's Corner: "SCC rehabilitates undue hardship threshold." Law Times apologizes for the error. www.lawtimesnews.com