Law Times

LaW TIMeS • OCTOBeR 5, 2015 Page 11 www.lawtimesnews.com New best practices seek reboot of civil trials BY JUDY VAN RHIJN For Law Times ithout any injec- tion of public funding or signifi- cant changes to the Rules of Civil Procedure, The Advocates' Society is hoping to re- shape the civil trial system with its new best practices for civil trials. The best practices respond to a growing realization that the mi- gration of matters out of the court system in favour of dispute reso- lution comes at a price: the loss of the open-court principle and the ability to contribute to the evolu- tion of the jurisprudence. "It's in the real public interest to retain a vibrant civil trial system," says Brian Gover, a partner at Stockwoods LLP in Toronto who was the chairman of the civil trials task force that launched the best practices in June 2015. Gover quotes the concerns raised by Associate Chief Justice Frank Marrocco of the Ontario Superior Court of Justice when he challenged The Advocates' Society's board of directors to do something about the state of the civil trial system. "There's a gen- eral recognition that excessively long trials consume scarce judicial resources to the point that timely access to the courts is compro- mised," he says. "The vanishing civil trial is often spoken about in Canada and the U.S. and to some extent in the U.K. largely because of the cost of litigation and the pres- sure placed on a publicly funded system by criminal and family law. Justice Marrocco believes that the current decline may render the next generation of lawyers and judges incapable of trying complex civil cases." The best practices stem from a collaborative model featuring discussions with the bench and the bar and a January symposium that attracted more than 100 judg- es, lawyers, and legal academics. "We focused on where we thought we could really make a difference: case management, trial practice and management, use of documents and technology, and expert evidence," says Gover. The guidelines stress access to judges as case managers in order to encourage the resolution of interlocutory disputes and avoid pretrial and trial motions. "It was interesting to hear judges say that civil motions are by and large a waste of time," says Gover. "We seek to streamline them through active case manage- ment by teleconferences around 9 to 9:30 in the morning. The judges can make binding orders without the elaborate process around civil motions." During the consultation pro- cess, a clear consensus emerged that case management shouldn't be mandatory. The hope is that even the availability of case man- agement will discourage unco- operative or unreasonable behav- iour by parties and their counsel. "It's important to reboot case management on an opt-in ba- sis," says Gover. "We didn't want it foisted on litigants who didn't really want it." He recalls the problems with the Toronto region's 15 years of case management. "Unless there's a real desire to engage, it's a waste of judicial resources." The guidelines envisage that case management and settlement meetings should be separate. The court should set the trial date and length as early as possible with a realistic timetable in order to re- duce adjournment requests. They recommend having a single judge with some expertise in the subject matter manage each case and per- haps conduct the trial as well. There's a strong emphasis on the frequent use of teleconferenc- es, videoconferences, and e-mails in order to resolve issues outside of the courts. "The real remedy is better communication between lawyers," says Gover. The best practices also encourage electronic trials in all of their forms with the goal of them becoming the norm rather than the exception. "In- evitably, that is where we have to go," says Gover. "That's where I see the cases of the future. Some witnesses will be heard in the traditional way, others by video link or Sky- pe. We just have to start trying cases differently. The civil trial of 2020 will look very different to the way they were heard in the '60s, '70s, and '80s." Gover recognizes that some regional differences will arise. "Different courthouses have different capabilities, but there ought to be a minimum stan- dard. I'd be very surprised if you couldn't have a teleconference at any courthouse in the province. I'd be very surprised if there was any impediment to case man- agement as we envision it. There is more work to do on the early assignment of a trial judge." An unusual recommendation is to conduct trials on a chess- clock basis with time allocated equally to the parties. Counsel can then allocate that time as de- sired among direct examination, cross-examination, and opening and closing submissions. Gover remembers a judge who used an analogy that com- pared court time to being in the operating room. "When you are using scarce public resources, you mightn't have unlimited courtroom time. With better case management and better trial management, you should have a more realistic idea of the time a trial will take." Gover has seen this concept work well in administrative cases dealing with significant matters. When it comes to expert evi- dence, the best practices try to fill the gap left by rules that al- low for some inconsistency. They endorse consulting with experts early in the process, providing reports to the other side even earlier than the rules provide, and putting them into evidence rather than providing copies as memory aids as is routinely the case in the personal injury field. All of the changes will require considerable co-operation from the judiciary. Gover stresses that FOCUS CANADIAN LAW LIST 2015 KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS This is more than a phone book. It is your instant connection to Canada's legal network. With Canadian Law List 2015 you have access to: • an up-to-date alphabetical listing of more than 86,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges across Canada • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important law-related offices THE LATEST CONTACT INFORMATION IN A USER-FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • last name first identification in the federal and provincial listings • separate section of corporate law departments for more than 1,300 companies • professional cards of prominent Canadian law firms • International Agency Referral Cards AREAS OF PRACTICE AND ENHANCED LISTING INDEX The enhanced listing index is displayed in bold type with detailed practice information. It also: • lists firms and lawyers that have expanded their practice information in their provincial listing • is organized by areas of practice by province, city and page reference in their provincial listings Hardbound • Published February each year • L88804-678 • On subscription $164* • One time purchase $182* Multiple copy discounts available * Plus shipping/handling and applicable taxes ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit www.carswell.com W 'I foresee that as part of their marketing, lawyers will say they've signed an under- taking to adhere to best practices,' says Brian Gover. See Cost, page 12

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