Law Times

Law Times • February 23, 2009 FOCUS PAGE 11 there's a huge spectrum of court- room styles south of the border. "They have federal courts and Wide spectrum of courtroom styles across U.S. O BY JULIUS MELNITZER For Law Times ne of the diffi culties in comparing U.S. and Ca- nadian litigation is that numerous state courts in a wide va- riety of local settings," says Jeffrey Leon, a partner at Bennett Jones LLP. "My impression is that the way American lawyers conduct themselves has a lot more to do with where they are and who they are than is the case in the Canadi- an system. And matching litiga- tors to local culture can be a very mysterious art at times." No one doubts that there are huge differences in style, for example, between lawyers from the large mainstream New York fi rms and the "cowboy attor- neys" from Wyoming. "There are fantastic lawyers in Wyoming and some of them have Harvard degrees," Leon says. New York, however, may have its own breed of "trial lawyer." "The general impression is that many of the New York lawyers work in huge law fi rms with very high billing rates and as a result work only on mas- sive fi les," says Stephen Maddex of Lang Michener LLP's Ottawa offi ce. "Those cases very rarely go to trial, so you could have a big-time New York lawyer who's been practising for 30 years and has barely ever been to trial." On the other hand, it would be a mistake to straitjacket Cana- dian counsel. "There are different judicial at- titudes from province to province, and it's a mistake to think judges, as opposed to juries, are rela- tively homogeneous," says John Campion of Fasken Martineau DuMoulin LLP's Toronto offi ce. "One of the advantages of experi- ence is you get to know the judges and can tailor your styles to them. To some extent, you can also do that by canvassing colleagues and researching past judgments." Still, given the sheer size and demographic complexity of the U.S., the disparity is bound to be more signifi cant in Canada. "My feeling is that there's more consistency across the board in this country, and that Canadian lawyers tend to con- duct themselves similarly be- cause our courts' expectation of conduct varies less than it does in the U.S.," Leon says. Still, while it's diffi cult to generalize, there is a pervasive an expert's report. Filing a motion for summary judgment could well prompt a response that would in- clude an affi davit from the expert." In Canada, of course, the rules only rarely make provision for the deposition of experts — which points to another signifi cant difference in the systems. "The scope of discovery is much broader in the U.S. and the way it occurs [is] very different," Maddex says. "You could have hundreds of depositions in a major U.S. case." And with the advent of elec- tronic discovery, it can sometimes 'The general impression is that many of the New York lawyers work in huge law firms with very high billing rates and as a result work only on massive files,' says Stephen Maddex. impression that the styles of Ca- nadian and American lawyers differ at the core. "The root of the differences lies in the fact that juries are prev- alent in the U.S.," says Gerald Ghikas of Borden Ladner Gervais LLP's Vancouver offi ce. "Good American lawyers are very expe- rienced in techniques that are ef- fective before juries, they're good at simplifi cation, they're good at using plain language, and they're good at focusing on the facts and always mindful how the jury will react to the facts." Ghikas also says American lawyers are much more mindful of how they dress and the persona they're projecting. "They also have styles that they put on like costumes, and I don't think any of that comes naturally but is very carefully contrived," he says. Maddex, who attended law school in the U.S. and prac- tised as a commercial litigator in Houston for eight years before returning to Canada in 2008, points to several other differ- ences between the Canadian and American system that he views as driving the divergences. "U.S. practice tends to be more litigious and the system there has developed to refl ect that fact," he says. "Cost shifting to the loser, for example, is much more rare than in Canada." Also, summary judgment procedures are more common in the U.S. "That occurs for strategic rea- sons, not because such motions are more likely to succeed," Maddex says. "For example, a defendant who wants to take an expert's de- position may not have received When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com appear as if that's what the case is about. "Clients will have paid a lot of money in the U.S. without necessarily seeing the substantive case advanced one bit because of the big fi ghts over electronic discovery," Maddex says. LT DD LT B QtrA-06 OPPckts ad 2/18/09 4:21 PM Page 1 Ridout_LT_Feb9-16_09.indd 1 Exclusive Premium Fold Back End Tab File Pocket Reddish-brown colour. Stronger tear-resistant Tyvek® material on gusset is superior in durability over traditional cloth. Eyelet reinforcement provides extra strength to tab and gusset. Reinforced end tab allows application of labels. Top tab in right-hand position. Notched tab allows easy retrieval. End tabs fold to store in archive box. 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