How to Win Cases

Conceptually, it’s easy: settle weak cases, try strong cases. When you try strong cases, find the spot where the best interests of your client overlap the most with the best interests of the court and hit it.

But what is this notion of the best interests of the court? Every litigator understands the best interests of the client and their duty to protect them. Many will also remember their duty as officers of the court.

But the best interests of the court is not quite fully the same thing as what litigators honour as officers of the court. It covers that but it’s broader. It consists of a few things that judges really like to have before they find in favour of your client. It’s almost a question of good public policy but not quite.

What is it?

For example, judges like it when counsel agree and settle rather than bring their disputes to court. It’s one of the reasons why enforcing a settlement is usually easier than enforcing a regular claim.

Another example of the same principle is the discovery plan in Ontario Rules of Civil Procedure. The rules committee added it a few years ago, and for a long time I got confusion from some opposing counsel when I asked for a discovery plan. Once, when I asked for a draft discovery plan, I got what looked like the firm’s internal template with instructions to the lawyer completing it still intact.

A discovery plan is an agreement between counsel about what documents or categories of documents are relevant in examinations for discovery (known as depositions in the US).

The rules committee came up with the discovery plan rule because the courts were overwhelmed with motions to compel disclosure of documents (which is a kind of an undertaking and refusal motion). The creative idea was that counsel should agree on what is relevant before questioning witnesses rather than put each other on the spot in discoveries, which proliferated refusals and motions.

This is a great idea.

It’s reduces the motion load on the courts, and it’s easier to enforce a discovery plan than to argue relevance based on the pleadings.

Anyone who observed judicial behaviour long enough probably noticed how different judges and litigators often are and how that makes judges upset. Litigators want judges to adjudicate as much as possible; judges want litigators to settle as much as possible. And I would argue that judges are right most of the time, and many disputes, especially procedural disputes, should be resolved by agreement.

The courts’ interest in settlement (backed by Ontario lawyers’ professional duty to promote settlement) is only one such unwritten undercurrent of the judicial system. Knowing and applying it to the best interests of the client will help litigators win.

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