Law Times

Law Times • June 29, 2015 Page 3 www.lawtimesnews.com Advocates' Society offers its prescription for improving civil litigation BY GLENN KAUTH AND TALI FOLKINS Law Times set of 16 best practices recently released by The Advocates' Society could go a long way in boosting efficiency and access to justice in Ontario's civil courts as long as the profession applies them, some liti- gators say. "Depending on where you're doing it, such as on the commercial list, some of these practices are really already the rule," says Bill Pepall, a partner at Lerners LLP in Toronto. "What's good about this is that they have combined in an organized way, with com- mentary, certain practices that counsel routinely do in certain cases and in certain courts, and put them all together and said there's no reason why we can't apply them to all civil disputes and tailor or adjust them depending on the nature of the case. A lot of this stuff experienced counsel do or try to do, but this is a really good and convenient articulation of them. The challenge is that it requires a lot of thought, organization, and co-operation in the early stages of the case. It's front-ending lawsuits, which is a great idea, but in volume practices sometimes it's a little bit hard to do." Earlier this month, The Advocates' So- ciety released the best practices document as part of an effort to boost efficiency in civil matters across Ontario. It launched the task force following Ontario Supe- rior Court Associate Chief Justice Frank Marrocco's challenge to the organization to study the issue and seek a better way forward. The task force then undertook research into best practices and, in January 2015, The Advocates' Society held a symposium on civil trials that included more than 100 members of the bench and bar. According to the principles under- lying the recommendations, the best practices are to go beyond the mini- mum standards of the Rules of Civil Procedure. They also suggest lawyers "should seek to cooperate with one another in the interests of keeping the civil process as fair and efficient as possible." Co-operation among counsel and advanced preparation are among the key themes in the best practices. "I think there was a realization that a consensus model would be a way to effect the change that we need to make," says Stockwoods LLP's Brian Gover, chairman of The Advocates' Society's civil trials task force that came up with the 16 best practices. The specific best practices cover case management, trial planning and management, the use of documents and technology, and expert evidence. On case management, they urge fixing the trial date and length as early as possible in or- der to focus the parties and narrow the issues; setting reasonable and meaningful deadlines with consequences, including costs, for missing them without adequate justification; and avoiding having a case management judge who conducts the trial also handle settlement conferences. Other recommendations include allow- ing judges and masters to assign matters to case management of their own ac- cord with counsel also able to request it unilaterally. As for timelines, the best practices say a case management confer- ence should be available within 30 days of a party requesting one. The focus on case management, ac- cording to Gover, ref lects the negative attitude the task force heard from many judges about the usefulness of motions. "That's why we had to reboot case man- agement," he says. Kevin Fisher, a litigation partner at Basman Smith LLP, agrees that case man- agement is essential to ensuring efficien- cy in civil trials by "keeping everybody's feet to the fire" and forcing them to be co-operative and come to court pre- pared. "Particularly when you run into situations where counsel are being dif- ficult or delaying . . . you can … have a case-management call videoconfer- ence or actual in-chambers meeting and things run along much faster. You avoid some of the motions and things that drag cases down," says Fisher. In fact, he says that in a document otherwise full of sound and workable approaches, the one item he finds re- grettable is the second best practice on the list that states that not all cases require case management. In Fisher's view, case management should be mandatory. When it comes to trial planning and management, the best practices raise the idea of having equal and fixed time al- locations per party within the trial with limits for both oral opening and closing submissions. In addition, they suggest the court should assign a trial judge to the case at least 60 days in advance of the first day of trial. The best practices for documents and technology include allowing potential out-of-town witnesses to testify via vid- eo if possible. And on expert witnesses, the guidance looks down on the idea of waiting until the trial to challenge expert qualifications. "I think we have to realize that we're front-ending a lot of the work," says Gov- er, who expresses confidence about the feasibility of the practices overall. "I think it is realistic," he says. "It's dependent on judges holding lawyers to the best prac- tices," he adds, citing the potential for cost consequences. LT NEWS Untitled-2 1 2015-01-06 8:56 AM A 'It's dependent on judges holding lawyers to the best practices,' says Brian Gover.

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