There is a certain foreboding in this David Bowie lyric. The song warns those in power of an emerging class that will replace them.

There are parallels in the modern world of the administration of civil justice.

The need for civil justice is as strong as ever. But although the core qualities of our civil justice system are beyond reproach, some of our machinery for delivering it is rusty and inefficient. This drives up the cost for the individuals and businesses that need it and hurts the image of the bench and bar.

The irony is that we are more able to deliver efficient machinery for the administration of justice than at any time in our past, thanks to the advances in technology.

There has been recent and volubile judicial criticism of the lack of resources committed by the government. Although there are complicated security, cost and other issues surrounding the implementation of software that allows direct public access, e.g. on-line booking and document filing and retrieval systems, one area for improvement requires nothing more than already existing email facilities.

I am referring to the service of material between parties.

In most civil cases lawyers still create hard copies of evidentiary records, books of authorities and factums. These are printed and bound and given to couriers who lug them about the city and beyond, spending hours lining up at court offices across the province to serve and file them.

This still goes on in matters on the Superior Court general list even though judges frequently request material in electronic format.

A particularly irritating example is books of authorities. Very often hard copies of these delivered by different parties contain several of the same cases.

Not only is it wasteful and expensive to copy (a lengthy case such as Combined Aircosts about $25 per copy), it creates storage costs, and it is useless. Judges and counsel all have online access to the cases. All they need is the link and the paragraph numbers. It is true that highlighting cases can be very helpful. But that of course can be done electronically.

While there are many advantages to having hard copies of certain documents in court, that is a choice that parties should be able to make, at their own cost.

We make a fetish of service of documents, even where all parties are represented. The rules requiring service of hard copies or faxes of factums and records are hopelessly out of date, and unnecessary in the vast majority of cases. They drive up cost.

This issue is a small example on inefficiency and waste. But why tolerate it?

The OBA Civil Litigation section is putting on a session bearing this title on 30 April. Here is how the topic is being described:

The legal marketplace is changing. Lawyers and law firms face increasing pressure to control costs in litigation and must adapt to provide superior results for a lower price. Learn about the trends, tools and techniques that will help you meet client expectations, deliver extra value, minimize overhead and maximize your bottom line.

Topics to be covered are : unbundling, outsourcing, advocacy referral and methods of using technology to do more with less. New ethical quagmires and avoiding the pitfalls that emerge from this new approach to, will also feature prominently.

We hear about this changing face of the practice incessantly: growing numbers of self reps; access to civil denied for financial reasons to ever-expanding sections of society; court lists and judges groaning under the weight of the extra time required to deal with these kind of cases.

The profession must adapt.

This session will help show practitioners how.

Given that it is Law Student Week at SLAW, I thought it appropriate to dedicate this post to the OBA's recent recommendations to the LSUC Task Force on the future of articling.

Scrutiny of all professional entry-to-practice criteria by the Competition Bureau and Ontario’s Fairness Commissioner requires the legal profession, and all other self-regulating professions, to carefully analyze their criteria and eliminate any elements that do not play a legitimate role in protecting the public.

In response to this scrutiny Convocation approved the establishment of the Articling Task Force to address concerns about the articling program, relating in particular to the growing number of unplaced candidates.

The Task Force is examining the competency-related principles that articling is intended to address, its effectiveness in addressing those principles and will consider additional approaches to articling.

You can read about the Task Force here. It contains a link to a Consultation Report to the profession approved and disseminated by the LSUC in December 2011.

Last week the OBA submitted its position to the LSUC Taskforce on behalf of the 37 OBA sections in a paper entitled "The Future of Articling".

I refer here only one point in the OBA's paper. It raises the important question of whether further analysis is needed to determine if the problems identified in the Consultation Report are permanent or transient.

It is a very thorough and detailed piece of work and deserves a good read. It will be of particular interest to law students.

In my post here on 19 September, I railed on about the fork in the road of advocacy – one towards mediation, the other towards traditional court advocacy. I said, "Court advocacy is to mediation advocacy, as tennis is to cage fighting. Without an umpire." My theme: although there is some overlap of skills, the two are sufficiently different that the advocate should concentrate his or her practice on one or the other.

In the Spring 2012 Advocates' Journal there is an article by the Chief Justice of Ontario which lays bare the differences between court and mediation advocacy in clear and simple language. It makes my imagery look clumsy and redundant.

The article is entitled "Advocacy in mediation: Tips". It opens by stressing the main point I was fumbling to make: mediation advocacy is, "very different from what is required in court." Mediation is negotiation and bargaining. The target of your persuasive efforts in mediation is to get the other side to modify its position, or else to get the mediator to sell your position to the other side.

The article gives eleven valuable tips for mediation advocacy. Some of them highlight the contrasts between mediation advocacy and traditional rights-based civil advocacy. They reveal what a different game mediation is, and what different skill sets it calls for.

Tip 3: do not enter into pre-mediation bargaining. You will lose flexibility. "It is virtually impossible to get the horse back into the barn." Traditional advocates will hold settlement discussions at any stage of the proceeding.

Tip 5: make sure your client and the opponent's client will be present. His Honour emphasizes it is important for your success that the client projects the right image – " Good mediators can smell weakness…A tough, firm client can be your best weapon at mediation. The client can also be the weakest link in your team." Traditional advocates will not let their clients be exposed to this kind of pressure or scrutiny if they can prevent it.

Tip 9: Don't be afraid to make use of silences. Do not inadvertently send the wrong message by taking time to consider an absurd proposal.

Tip 10: Beware of fatigue, greed and fear – they can lead to settlements that are unwise. Compromise is ok, but "Don't chase the deal." The pressure cooker situation that Tips 9 and 10 refer to are the goal of mediation advocacy: they are a by-product of traditional advocacy.

Tip 11: The ultimate difference between a good advocate in mediation and the "also rans" is the ability to to close. "It's all about closing a deal – some can, some can't." The difference between a good traditional advocate and the "also rans" is the ability to harness and adduce evidence persuasively.

Is the lawyer's preference for the word "client" instead of "customer" anything more than protectionism for the arcane?

The UK Office of the Legal Ombudsman doesn't seem to think so.

Three years ago the first press release issued by the Ombudsman's office deliberately chose the word "customer" to symbolize the change which its arrival heralded. So explains Adam Sampson the UK's Chief Ombudsman in the Guardian last week.

The view of the Legal Ombudsman, it seems, is that the word "client " trails behind it habitual thinking about the provision of legal services that neither can, nor should, survive:

The term "client" embodies the traditional view of the relationship between lawyers and those they represent: one of unequal power and status.

According to Mr Sampson, "Client" is part of the lexicon that enables lawyers to ignore basic rules about customer service. The word "Customer" though depicts the relationship the right way up. The customer has the power to pick and choose between providers. Customer is king.

For example customers expect to know how much what they are buying will cost, says Mr Sampson. He concedes services such as litigation are unpredictable and can take unexpected trajectories. But he chides lawyers for being reluctant, even in areas of legal services that are less unpredictable, to provide some sort of conditional pricing that is dependent on how cases unfold. This he says is where the leaders of the legal services market are going.

He takes care not to advocate "stack 'em high sell 'em cheap" law but, he predicts, it is lawyers who put their "customers" at the heart of their business that stand the best chance of prospering.

No doubt the choice of language is powerful. Words import associations, like Trojan horses. But while the substitution of "customer" for "client" may usefully remind the legal profession it is subject to the basic rules of the market, might it not also tend to reduce the level of duty lawyers owe to those who hire them?

I don't think this idea would go down well in Ontario.

Under the new QASA , UK judges in criminal matters will now rate the levels of advocates appearing before them.

Cases are assigned levels and advocates will only be permitted to appear in cases assigned to their levels and below.

Advocates are assessed judicially , and by an approved assessment organization. The advocate must ask judges for an assessment prior to the hearing, and must be assessed 5 times over a 5 year period. The advocate can choose the best three scores.

Over time advocates can move up the ladder.

Only those with Level 4 rating will be allowed to appear on the most serious cases. Level 1 will be confined to magistrates courts.

There is a bewildering breakdown of over 160 " Performance Indicators", colour-coded and finely detailed. See Appendix 1 (p. 43) to this PDF – Statement of Standards written by the Joint Advocacy Group. It looks like could take longer to complete than the reasons for judgment. Note for example the distinction between "Deep Understanding of Law and Practice" (Level 3) , and "Superior Grasp of Law and Practice" (Level 4).

Commentators are saying a scheme such as this, designed to support advocates and improve advocacy, risks damaging the strengths it was designed to enhance.

Lord Justice Moses lambasted QASA in a speech last week. He warned of the danger of creating a generation of sycophantic advocates concerned more with protecting and enhancing their chances of preserving and improving their rating, than their client's interests. He pointed out that the assessments made by the judges are then assessed by regulators – "…a team, under a manager employed by the regulator, will decide whether the advocate has the competence to move up a level or to be re-accredited at the same level." Apart from promoting defensive advocacy, a poor rating given to a barrister at a hearing may provide grounds for appeal.

Although the scheme applies only to criminal matters, the intention is to roll it out across civil matters in due course.

Julian Assange's extradition appeal was heard at the UK's highest court on 1 and 2 February. Assange is trying to avoid being sent to Sweden to face allegations relating to sexual encounters there in 2010. The key issue is whether a public prosecutor is a valid judicial authority.

Two things about this appeal illustrate the flexibility of what is wrongly thought to be a crusty, fossilized world. Both barristers in this extremely high profile case are women. And the proceedings were broadcast live from the court room. Here is an extract from the hearing.

And Simon Chester's post today reports an announcement that the court will start official tweets of judgments .

My post today is a question.

I recently heard an interview in which a major newspaper editor said the traditional model of "active" journalist and "passive" reader, is dead. He gave the following illustration. On the opening night of a new opera production the most experienced and highly regarded opera critic in the world can write a review for the next day's paper. It will be brilliant as usual, but it is "nonsensical" to think the other 700 people in the audience have nothing of value to add.

He likened this change in perspective to flipping a switch in our thinking. Do not think of the newspaper as being "on the web", but "of the web".

The Massachusetts Institute of Technology has made the decision to post all of their course materials on line. It is now accessible free of charge both to students and professors at other teaching institutions.

Through Galaxy Zoo "citizen scientists" take part in helping professional astronomers assemble valuable data for research and exploration.

Scientific data that gives a "leg up" to pharamaceutical companies working to develop cures, is now being posted on line by public-private partnerships that support the discovery of new medicines through open access research. The result is that cures are being developed years sooner than under the traditional model in which such data is proprietary and patented.

Does this open access, interactive model have any potential application to the provision of legal services in the civil justice system?

Winston Churchill once famously rejected a desert saying, as he pushed it away, "This pudding has no theme."

Of the many criticisms that can be justifiably leveled at my weekly post on this blog, lack of theme, I hope, is not one.

The theme of my posts is the need to preserve our adversarial system of civil justice; to prevent it from morphing into one that basically offers only interest-based dispute resolution because the energy and the skills needed to determine rights, have fallen into disuse.

I carry that theme around all during the working week, and after hours too.

So when I read about the "Occupy The Courts" demonstrations in the US last Friday, it was, I thought, a shining illustration of the importance of an independent, strong judiciary. It fits my theme like a glove.

According to the "Occupy The Courts"  website, the legislative and executive branches in the US have sold out to corporate interests but there remains a chance with the judiciary:

"The courts are the one place where there still exists some chance of a fair result for the 99%, against the power and influence of the 1%. Occupy The Courts is a people-powered movement to bring court cases against corporate power and government abuse, and is an extension of the Occupy Wall Street movement that began on September 17, 2011 in Liberty Square in Manhattan's Financial District."

The timing of the "Occupy The Courts" demonstrations last Friday was arranged to mark the second anniversary of the United States Supreme Court decision in Citizens United vs Federal Electoral Commission. A decision that, according to the protesters, changed the rules for election financing and, gave personhood to corporations, allowing unlimited corporate funding of independent political broadcasts in election campaigns.

My point is not of course who is right, but that there are rights. And when asserted, a healthy society must have robust machinery that is capable of determining rights swiftly, impartially, and according to law.

While the issues concerning "Occupy The Courts" are big, public, constitutional questions, this is no less true of private civil disputes.

Leading London barrister Jonathan Sumption (now Lord Sumption) was sworn in last week as a member of the United Kingdom's highest court, the first barrister in 50 years to be appointed to the jurisdiction's top court without having served as a full time judge.

My SLAW post on 14 November last reported on a speech Sumption made about that time on the dangers of the widening scope of judicial review.

He returned to that topic in his recent interview with The Times, warning judges to keep out of politics.

Sumption also spoke of his views on judicial appointments. He opposes any change to the principle of appointment on merit alone to increase the number of women or other under represented groups. (Only one of the eleven members is a woman.) He questions American style Parliamentary scrutiny of judicial candidates, but points out that if judges are involved in reviewing policy, pressure for input into their selection will inevitably follow.

For some reason Yeat's poem The Second Coming bubbled up in my mind when I read an article based on an interview with the incoming chairman of the UK bar, Michael Todd in the Law section of the London Times recently. These lines of the poem in particular –

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world…"

I don't suppose Yeats was foreshadowing the turf war between barristers and solicitors much, or that he was particularly worried about it. But promoters of a Canadian model of legal services in which advocacy is a specialty, should keep a learning eye on what is happening in the UK.

According to the article, the last hallmarks of the two branches – barristers and solicitors – are being removed.

Always above the financial fray, relying on solicitors to be responsible for their fees, barristers are now contemplating new rules that would allow them to handle the client's money.

What's more, there are plans to allow the public to retain barristers directly, instead of through solicitors.

According to the article, modernization of the way in which barristers provide their services does not go down well with solicitors.The last major struggle between the professions was in the 1980's when solicitors were given extended rights of audience in the courts. Barristers then allowed fellow professionals to brief them directly, not through solicitors.

Who knows where this will end. There does seem to be an evolution towards the Canadian model, but the F word – fusion – is apparently not yet in the cards: "People can go to solicitors for general advice but if specialist advice is needed they can come to us" says Todd.

Whatever way it emerges, whatever shape it takes, a model in which some lawyers specialize in advocacy and therefore have lower overheads, will offer the public greater advocacy experience for their dollar.

This was how David Sterns, one of the panel members at an OBA civil litigation session last week, described the Ontario Court of Appeal's 5 December judgment interpreting the new summary judgment rule. (See Simon Chester's post last week for a good description of the amendment and the decision.)

Despite all the energy and resources being devoted in our modern system of civil justice to mediation, alternative dispute resolution and most recently judicial dispute resolution, in its 111 page judgment in Combined Air and four other cases, the Court of Appeal reinforces the primordial elements of the trial in our system of civil justice. As Peter Griffin, another panel member put it, the court is saying that in this province "We are in the trial business."

The central message of the Court of Appeal's decision is that the summary judgment motions court cannot dispense with a trial unless it is "in the interests of justice" to do so:
"…the aim of the civil justice system is to provide a just result in disputed matters through a fair process."

The Court emphasized (para 59) that the amended rule is not to be interpreted as creating a summary trial – a summary judgment motion does not constitute a trial. The Osborne report on civil justice reform recommended adopting a summary trial mechanism but it was not adopted.

The purpose of the new power to call oral evidence on a summary judgment motion is to assist the motions judge in making the determination as to whether any of the issues raised in the action require a trial for their fair resolution. The power must not be understood as permitting summary or mini trials. The power,

amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with summary disposition rather than requiring a trial.(Para 60)

While there is a role for expanded summary judgment procedure,

…a trial is essential in certain circumstances if the interest of justice is to be served. (para 45)

The Court went to great pains to describe the importance of the trial process in attaining justice. A trial gives the judge "total familiarity with the evidence". The judge participates in the dynamic, sees the witnesses, asks questions when in doubt, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses, not via affidavits drawn by lawyers. The judge's involvement gives greater assurance of fairness. A trial allows the parties to present their evidence in the manner their advocates choose. This may have an impact on the outcome. (See paras 46 – 49).

The Court of Appeal has now made it perfectly clear that where the interests of justice require a trial, in Ontario parties cannot be deprived of one by summary judgment.

Two things follow.

First , where the interests of justice require a trial, and a party has elected to proceed to trial after unsuccessful mediation, it is contrary to the interests of justice for the party to be subjected to further compulsory, emotionally draining, expensive mediations and pretrials.

Second, unless the parties agree, it is contrary to the interests of justice that they should be made to speak, or have their witnesses subjected to questioning at pre-trials or mediations. This annihilates the parties' control of the conduct of their trial.

In my 26 September post here I touched on the issues raised by judicial mediation.

On 9 December the OBA presented a full day program on the topic.

Four panels covered the interprovincial landscape and experience, the Ontario experience, the private mediation landscape and perspectives, and finally the client's perspective. Two breakout sessions considered the pros and cons, and the essential elements of good judicial mediation.

Of particular interest are the developments in Judicial Dispute Resolution in Alberta.

The Alberta new rules of court which came into force in Alberta on 1 November 2010 make JDR (or another form of dispute resolution) mandatory before trial. There has been great demand for JDR. The backlog for trials has decreased such that a civil trial of 3 weeks or less can now be accommodated within 3 – 6 months. It often takes more than 6 months to obtain a JDR date.

In Alberta JDR proceedings, judge-shopping is the rule and is encouraged so the parties will get a judge whose style, reputation and expertise will maximize the chances of settlement.

What I detected at the Policy Day was a general feeling among Ontario lawyers (certainly in the break out group I attended), that any rule change that results in an increase in the number of settlements enhances access to justice and enhances the reputation of the administration of justice.

There was talk of "facilitative mediation" (entirely interest based, without any evaluation of rights), "evaluative mediation" (which does consider rights) and binding mediation, which is set up as for a summary trial on affidavit evidence and proceeds to mediation, with the parties agreeing in advance that if there is no settlement they will accept the ruling of the JDR judge.

I heard for the first time about something called the "Trial-Like Settlement Conference". These would be held in a courtroom off the record, in camera. The parties describe the evidence they would present at trial. They are questioned by their own counsel and opposing counsel, but not on oath. They make submissions. The judge meets the parties or counsel together or, separately "in caucus". "At an appropriate time" the judge expresses opinions on the issues, or declines with explanation.

Those in support of JDR generally encourage counsel on both sides to see their roles as joint problem solvers. "What a novel idea",writes Mr Justice R.A. Graesser of the Alberta |Queens Bench in a paper prepared for the Alberta Civil Trial Lawyers Association, "and how powerful that can be when both (or all) counsel are focussed on working to find solutions rather than fearlessly advancing their respective clients' positions!" (Emphasis in the original.)

In Justice Graesser's view, "JDR advocacy as well as mediation skills will overtake civil trial advocacy in importance, if it has not already done so."

Does the arrival of JDR call for any change to the oath Ontario barristers take to protect their client's rights and interests, or the LSUC motto "Let right prevail"?

"In many ways a trial, like skydiving, is not inherently difficult; however both can be terribly unforgiving of the slightest inattention."
"Courting Justice", David Boies (Hyperion -Miramax 2008)

Referral advocacy is a model by which court advocacy is undertaken by a specialist bar to whom other lawyers refer as needed.

Lawyers who refer to specialist advocates lose the headaches of trial work, the havoc it wreaks on a practice, and the responsibility for an unfavourable outcome. Yet they gain the ability to offer their client specialist advocacy services at more predictable cost, and the client's gratitude when the outcome is favourable.

There is no risk that the referring lawyer will lose the client: the referred advocate will only accept a retainer to provide advocacy services. All other litigation services remain within the broader retainer of the referring lawyer.

Referral advocacy also resolves a conflict that is generally not articulated in civil litigation. If the message in the above quotation is accurate, and given its source it should be, the less experience a lawyer has with trials (or other contentious steps in which rights are finally determined), the less comfortable he or she will be with them, and the more inclined to avoid the step because of the significant prejudice resulting from a negative outcome. This compromises negotiating strength. Referral to a lawyer who specializes in court advocacy may not guarantee victory, but it certainly relieves the negotiating lawyer of pressure. It can also strategically intimidate an opponent.

"An understanding of the trial process is the unique skill of the trial lawyer and that skill is derived from the courtroom."
(Advocates Society Task Force on Advocacy, June 2004)

There are also cost benefits to referral advocacy. Specialist advocates need less back-office overhead. They take less time performing the task because of their specialization.

And then there is the question of incentive: a referred advocate feels only as good as their last case. Their business is repeat referrals.

The Canadian legal profession has taken to specialization with alacrity in most areas, but not when it comes to court advocacy.

What is the reason? Is it that historically we have always qualified our lawyers both as solicitors and barristers, so the referral model is not within our repertoire? Is it that we doubt specialization means better results, or better chances?

In these days of dwindling trial experience, is it time to consider referral advocacy?

In Canada there are companies that provide "litigation financial services" for personal injury, class actions and many other types of claim. These "Plaintiff's Loans" are generally up to 10% – 20% of the value of the claim. No payments of principal or interest are required until the settlement or judgment is paid. If the amount recovered is insufficient to repay the loan, some lenders hold the borrower liable for the balance. Other lenders make non-recourse loans in Canada.

The loans made by these Canadian companies are frequently to personal injury plaintiffs and in the region of $10,000 – $20,000.

In the UK there is a development towards litigation financing for bigger stakes. Investec Specialist Private Bank , a division of a financial network founded South Africa, last week announced it has become the first British bank to invest in commercial court disputes. The minimum funding is 250,000 pounds. Investec offers this service, "…in response to response to increasing demand for innovative funding solutions from law firms and their clients" according to its press release.

Parties that want to hedge their bets against costs awards if they lose, or who need financial assistance to bring a case can apply to Investec for funding in exchange for a cut of the winnings. The bank is aiming to help clients who have strong cases but are not prepared to risk the cash flow required to pursue them. The availability of litigation funding can go a long way towards bringing about a settlement.

Another firm in this line of business is Guernsey based Juridica Investments. Juridica is a source of direct financing for large business claims in the United States and one of the leading sources in the United Kingdom. Its website states,

"Our simple goal is to provide business clients with financial choices that reduce risk and assist in maximizing claim value."

The approach is to monetize business claims and transfer the risks associated with pursuing them so they can be treated as a corporate asset.

Supporters of third party litigation funding argue it improves access to justice. If so, it is being improved at both ends of the financial spectrum.

How far can judicial review go before it trespasses on the proper function of government and the legislature? What is the proper role of the judiciary in constraining the actions of the democratic state?

Last week, UK Supreme Court nominee Jonathan Sumption Q.C.raised these questions in a speech on the subject of the widening scope of judicial review in the UK .

He concluded by warning that if it is perceived judges are reviewing the merits of legislation, there will be pressure for some kind of democratic input into their selection. He would regard this as a very unfortunate outcome because it would politicize the bench and undermine its reputation and perceived independence.

"The judiciary cannot realistically expect to participate in the process of political decision making in a democratic constitution while remaining immune from any kind of democratic influence over their selection"

He describes the natural tension between democracy and judicial review, except where it is confined to the application of policy to a particular situation. The conflict arises where the review is applied to the propriety of the policy. Where does law end and policy begin?

Decisions of the courts on the abuse of discretionary powers, he says, "are based far more often than the courts have admitted on a judgment about what it is thought right for Parliament to wish to do."

The problem, he says, is sometimes not so much a lack of clarity in the expression of Parliament's will as a radical difference between the collective instincts of the judiciary and those of politicians facing the electoral process. The judiciary and the executive see issues from opposite ends of the telescope: judges are influenced by their experience with individual cases. Politicians are concerned primarily by the problem viewed impersonally.

Sumption argues that by giving legal effect to the Human Rights Convention in UK law, certain policy matters – particularly including penal policy, freedom of expression and immigration – have been transferred out of the political arena into the realm of judicial decision making where public accountability has no place.

The Strasbourg court he says has treated the Convention not only as a safeguard against arbitrary exercise of despotic power, but as a template for most aspects of life including matters which are governed by no compelling moral considerations one way or the other.

Sumption says the way different countries have dealt with abortion illustrates how different societies address the same issues. These are not really issues between the state and its citizens but between different groups of citizens, and are resolved by the democratic process in different ways.

In Sumption's view, parliamentary scrutiny is perfectly adequate for the purpose of protecting the public interest in the area of policy making, and it is the only way of doing so that contains any democratic legitimacy.

My post this week comes to you from the posh Millenium Hotel in Knightsbridge, London, where the organizers of IBC's 3rd annual trust litigation symposium (brochure) have been kind enough to instal their speakers and panelists.

My panel "Caught in the Wrong & Possibly Putting it Right" is on a 2011decision of the UK Court of Appeal in two cases in which that court said the law had taken a "seriously wrong turn" over the last few decades. (My post on this decision – 12 September). The panel's job is to air views on the likely impact of the decision on trustees in the UK , Guernsey & Jersey and Canada.

Pitt and Futter were standard requests for the application of the "rule" in Hastings-Bass which the courts of first instance found themselves bound to apply. The H-B rule is based on the principle that where a trustee exercises a discretion, she can only do so validly as long as she remains within the authority granted by the deed of trust. If the trustee goes beyond those powers, the action is void. If the trustee acts within her powers but breaches a fiduciary duty while exercising a discretion, the action is voidable.

One such breach is the failure to take into account a relevant factor when exercising the discretion.

In the Futter and Pitt cases, in exercising their discretion the trustees overlooked certain legislative provisions. As a result beneficiaries suffered unintended tax consequences.

Overlooking things that result in harm to the trust is a breach of fiduciary duty. The courts of first instance found the trustees' action was voidable. The transactions were undone by application of the H-B rule. The taxes were not payable.

One of the judges at first instance had been elevated to the Court of Appeal by the time the HM tax authorities' appeal arrived there. He was then in a position to say what he really thought. Enter the "seriously wrong turn".

The appeal court held that because the Pitt and Futter trustees had relied on professional advice in taking their actions, there was no breach of fiduciary duty. Therefore the H-B rule could not be invoked. The trustees should sue their advisers instead.

A frisson rippled into the world of common law trusts litigation. The decision is on its way to the UK Supreme Court but the word on the street here is that it will be upheld.

In Canada we are fairly insulated from the effects. We don't use H-B to undo trustee action that results in unintended tax consequences. We use the same approach for anyone who finds themselves in this position: rectification. Whether you are an individual, a corporation or a trustee if you can show a continuing intent to lawfully avoid a particular tax , but because of a mistake in executing the transaction that tax is triggered, the court will not permit CRA to get the windfall, but will correct the error nunc pro tunc.

The Guernsey & Jersey courts apparently may not follow the "U turn". The Privy Council, some here predict, will respect Jersey & Guernsey's different context.

Ah the beauty of the common law system! What will be left of it when the tides of mandatory mediation have receded?

Last week I was half-listening to a CBC radio interview in the "Gamechangers" series on the Current, in which a physicist was explaining parallel universes and quantum computing. There was something about his delivery that made me pay more and more attention. His language was simple and clear. I was being drawn in to what felt like relatively effortless understanding (listen especially around the 12 – 16 minute mark). I turned up the volume and gave the radio my full attention, realizing I was being captured by excellent advocacy.

It is of course the fundamental goal of all advocates to be able to make complicated material interesting and understandable to an audience

At the end of the interview I discovered I had been listening to David Deutsch. I Googled him. He is an Oxford physicist. Pioneer of quantum computation. Author of famous works including The Fabric of Reality (which I had never heard of.)

Soon I was in his web page. One of the links is to Taking Children Seriously, a site devoted to parenting. I followed it and, to my horror, found myself awash in what seemed to be the unqualified promotion of dispute resolution through mediation.

My weekly theme in this blog is that mediation, although an essential part of the menu of services available in a modern legal system, on its own is not an adequate dispute resolution system. Rights are rights, and if the holder of the right does not want to compromise, she must be entitled to assert it and the judicial system must be able to grant it.

Here was a genius, and a superb advocate, telling me I was all wrong!

The objective of the TCS approach is that all problems can be solved without any one side imposing their will on another:

“Solving a problem means doing whatever it takes to cause those involved to adopt states of mind which they prefer to their previous states, and which do not cause them to hurt each other. This might involve taking some visible action, or it might just mean making a change in your mind.”

The site is fascinating reading for anyone interested in theories of parenting.

As I read further I realized that the results we often get from mediation in our judicial system – a compromise in which neither party is happy – is not what Deutsch and TCS are advocating. Their goal is consent-based solutions defined as:

…wholehearted agreement – outcomes having the property that no one gets hurt – rather than ones in which someone is merely going along with the outcome while really wanting some other outcome.”

Rights-based dispute resolution conducted according to law and precedent is not designed to deliver this. But mediation doesn't deliver it either. Wholehearted agreement is no doubt a more laudable goal, but if it cannot be achieved, the parties must not be compelled to compromise their rights.

"Unbundling" is a name given to the provision of legal services for part, but not all, of a client’s legal matter, by agreement with the client. Another name is "limited scope retainers".

The idea is that by providing Rules of Professional Conduct and guidelines on the issue to lawyers and paralegals, the public will have greater access to justice.

Unbundling raises all kinds of ethical and procedural issues. The OBA struck a task force to draft the OBA's submissions on the subject to the Law Society's Professional Regulation Committee. Here are the main issues identified in the OBA's submissions :

Clarity of the agreement between the lawyer and the client;

Communications between counsel and the adverse client who is receiving limited services, and disclosure about limited service retainers;

Is the work capable of being done on a limited service basis?;

Will the promotion of LSA's tend to erode the delivery of full legal services? ;

Last month Convocation of the Law Society of Upper Canada approved amendments to the Rules of Professional Conduct and the Paralegal Rules of Conduct to provide guidance to lawyers and paralegals who provide legal services under limited scope retainers. Convocation's full report can be seen on the Law Society's website, Convocation Reports, Professional Regulation Committee. For the blacklined version, see Appendix 4 at PDF page 47.

To what extent should judges be involved in mediation?

The Chief Justice of Ontario addressed this thorny issue in The Advocate's Journal, Winter 2010. He considers it from the perspective of the public, the bar and the bench, provides a brief history of judicial involvement in settlement discussions, adumbrates the arguments for and against judicial mediation, and asks whether it is a reality or a fantasy.

There are so many issues.

How would it be different from the pretrial rule which is designed "to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing"?

Should judicial mediation be given official status? Should it be interest based or rights based?

Should judges be meeting with one side in the absence of the other?

Does judicial mediation undermine the judiciary as society's ultimate impartial arbiters?

See this interview with Hon. Richard Scott the Chief Justice of Manitoba and chair of the Canadian Judicial Council's Judicial Conduct Committee.

The debates rages on.

It is fascinating to see how widely the mandate varies across Canada – see this Lawyers Weekly article.

In January of this year the OBA struck a task force to study the issue. Here is its Mission Statement.

A Policy Day on this topic will be held at the OBA conference centre on 9 December 2011. Check the OBA website for further details.

Two galloping horses. A single rider, with one foot on each. The three are approaching a fork in the road.

Call me melodramatic, but this is the image that bubbled up in my mind as I examined the material I received from the Advocates Society this week.

The Advocates Journal contained an article by Sheila Block entitled "Advocacy Lessons from the Past". It is an engaging piece sprinkled with references to the succinct styles of Maloney, Dubin and Robinette. The author reminds us of advice from Orwell on writing, relishes 'beautiful, simple language', and questions whether today lawyers focus enough on the fundamentals of persuasion.

In the same envelope was a flyer announcing a special litigation presentation – "Mediation Advocacy". The program description sensibly points out that litigators don't leave their courtroom skills to chance, and goes on:

"The majority of cases are won or lost before going to trial and you need to be just as vigilant about your advocacy skills outside the courtroom."

No doubt there is some Venn diagram-type overlap between the skills required for court and mediation advocacy: ability to absorb the factual record, knowledge of the underlying legal rights.

But there the similarity ends.

Court advocacy focuses on persuading a disinterested, impartial judge. The target of mediation advocacy is the opposing party and their lawyer. In court there are rules of evidence and admissibility. In a mediation the goal posts have been dismantled and taken away. Human psychology is the key in mediation; in court we hope for decision-making based on a cool appraisal of the facts and the law.

Court advocacy is to mediation advocacy, as tennis is to cage fighting. Without an umpire.

Developing a style for one, will not help you with the other.

Should litigation lawyers be expected to do both?

I think we should choose horses.

The lengthy judgment of Lord Justice Lloyd in a decision of the Court of Appeal of England and Wales released 9 March 2011, contains the following tantalizing sentence:

“For the reasons that I have given above, in my judgment the principle known as the rule in Re Hastings–Bass… is not a correct statement of the law.”

These words are all the more tantalizing because the courts of England and Wales have applied the rule in Re Hastings Bass consistently since it was handed down in 1975. (The rule essentially allows trustees, in certain circumstances, to attack their own decisions and set them aside where there have been, for example, unintended tax consequences.)

In his concurring opinion Lord Justice Longmore said the Hastings-Bass rule was an example of the law “taking a seriously wrong turn”. The legal press called the decision a “U-Turn”.

There is something pleasing about formal recognition that wigged judges, resplendent in ermine, Oxbridge men, sat up there getting it wrong for 35 years. But it 's hard to put your finger on what it is exactly that's pleasing. The fact that eminent legal scholars get it wrong, makes it easier to accept one's own errors, of course. But more than that, it is the fact that despite the Court's pomp and authority, the oak panelled rooms and high prestige of its officers, errors – "serious" wrong turns in the pronouncement of the law – are admitted. It makes the power of the judicial institution less scary somehow, less hubristic. It demonstrates humility: it recognizes that getting the right answer in the interpretation of law is an incremental and constant process of adjustment and checking, over decades.

In short, this recent appellate decision illustrates the organic, flexible beauty of our Common Law system which records the law in reports that embody the decisions of judges, together with the reasons they assigned for their decisions. In the days of astronomical legal fees and mandatory mediation the question that arises is, can we keep it?

There is a chilling tale in the UK press this week about the trial of a man accused of abducting and murdering a child.

What is as gruesome as the fact of the murder, is the personal cost borne by the family members of the victim who gave evidence. It is a corollary of the adversarial system.

The path of the cross examinations was to show the victim's mother was guilty of neglect, and that perhaps favouritism of the victim's sister precipitated her death. The father's use of pornography were put in evidence. Portions of the victim's diary was read in, describing her unhappiness and angst.

Defence counsel were attempting to elicit evidence that might persuade the jurors that the child may have run away, perhaps committed suicide, that she may not have been murdered by the accused.

The accused was convicted and sentenced to life imprisonment last Friday. He had already been convicted of two other murders. He has a history of manipulation and deceit. He is known to relish the pain he brings to the families of his victims. He did not give evidence.

The cross examinations of the family members have triggered an avalanche of criticism against the entire adversarial criminal justice system. Some papers are reporting that changes to the law are being considered.

There are abundant letters to the editor from lawyers, one supporting the defence counsel who, "cannot be blamed for tactics that were forced on them by the client and procedure".

Others blame the press for unnecessarily reporting the prurient details.

A few voices have put forward the old axioms: however repulsive, a defendant's case must be put to the jury; the judge and the Crown are there to ensure the attacks on the credibilty of witnesses stay within the rules of relevance and propriety; this is the cornerstone of our judicial system.

The case for me is an uncomfortable reminder of the deal we tend to forget we have struck: that in our pursuit of fairness to the accused, we can be desperately unfair to the innocent.

On 31 May 2011 Justice David Brown of the Ontario Superior Court of Justice delivered a paper under this title. His central thesis is that until certain obstacles are removed, and assuming a fixed judicial complement, little significant improvement can result from the changes to the rules of civil procedure that came into effect in 2010, or any future changes to the rules.

Brown J. identifies two sacred cows and two stumbling blocks.

The sacred cows are:
1) that the administration of the courts must remain under the control of the executive of the government;
2) that unlimited judicial resources are available for every civil dispute.

The stumbling blocks are :
1) the increased number of self represented litigants;
2) inadequate information technology to manage the cases in the judicial system.

The first cow: key aspects of the control of the litigation process should be in the hands of the judiciary, but are not. This makes it impossible for the judiciary to control the litigation process. Some examples are: the ability to ensure that the information maintained about cases meets the needs of the judiciary; the ability to ensure that materials required by the judiciary to adjudicate or mediate are organized so as to be accessible to judges; the ability to assign and deploy personnel.

Second, the rules of civil litigation assume unlimited judicial resources exist for every case. Some solutions proposed are: rationing of judicial time for example by assigning a fixed number of motions to each proceeding; charging higher filing fees for additional motions; penalizing obstructionist conduct through multiples of indemnification costs; awarding priority dates to well-run litigation; more motions in writing; higher filing costs for longer hearings; more aggressive use by the Bench of rules that permit judges to control the court process such as time limits for evidence in chief and cross, and some outsourcing of judicative functions.

As to the first stumbling block, the paper contains an interesting comment on self reps: they are not a homogenous group. They can be broken into those "lost" in the system (5%), those under disability(5%); those who cannot afford a lawyer (25-30%) but the largest sector are those who think they can do a better job than a lawyer – 65-70%. Together they pose significant problems. The solutions proposed include more staff scrutiny of material filed, availability of "unbundled" representation services, limitations on self-representation, and case management to prevent unnecessary interlocutory motions.

The second stumbling block His Honour describes is the existing information technology system which he calls a "scandal". Litigants cannot communicate with the court electronically. The court system cannot be depended on to preserve, organize and deliver hard copies of materials to the judge. The existing system is incapable of delivering adequate information about the case history to judges responsible for scheduling proceedings. No organized approach exists to electronic trials.

Justice Brown concludes unless these obstacles are removed, "I have difficulty seeing how tangible improvements in Ontario's civil justice system can occur in the face of fixed judicial resources."

Scribes is an American society whose goals include the creation of an interest in writing about the law, and above all, the promotion of a clear, succinct and forceful style in legal writing.

A few years ago some Bay St law firms subjected their associates to compulsory viewing of videos of interviews of US Supreme court Judges on the subject of persuasive writing. These interviews have now been transcribed and can be accessed in PDF form at Scribes Journal of Legal Writing.

In what the New York Times described as a "trove" of interviews conducted in 2008, eight justices of the US Supreme Court describe how they write their opinions, what they are looking for in legal briefs and the art of legal writing generally. Only one judge, Justice David Souter, declined to participate.

A general comment made by the justices was that while the quality of the briefs was high, they were too long. Often lawyers use up their maximum of 15,000 words unnecessarily.

Such a message from so exalted a source must have ricocheted around the walls of the editorial offices of Scribes sending bells ringing and lights flashing like a winning fruit machine in Vegas.

Founded in 1953 Scribes seeks to "spread the growing scorn for legal writing that is archaic, turgid, obscure and needlessly dull". It gives annual writing awards, publishes a newsletter – The Scrivener - and a journal (in Volume 13 of which the USSC interviews appear) – The Scribes Journal of Legal Writing.

The Scribes website is well worth a visit.

The Scribes Annual Luncheon this year will be held in Toronto on August 6.

What is the duty of a real estate agent to verify the information provided by the vendor of the property to prospective purchasers?

In this space I frequently moan about the danger of mediation stemming the flow of judicial precedent, but here is a nice legal question answered by the Court of Appeal for Ontario this month.

The property was a residential home with significant structural and plumbing problems.

The agent, who acted for both the purchaser and the vendor, became the meat in the sandwich.

The purchaser sued the agent for failing to advise the purchaser to obtain professional advice about the possible structural problems, and for failing to warn about the risks of making an offer that was not conditional on inspection.

The vendors sued the agent on the ground that she failed to advise them of their duties with respect to providing information to prospective purchasers about the house.

Should there be a legal duty to notify people about whom a story is to be published, to give them an opportunity to go to court to stop the publication?

Max Mosley, former Formula 1 motor racing chief says so.

The News of the World, a UK tabloid, ran a story a few years ago revealing that Mosley had taken part in a sadomasochistic orgy with prostitutes. In 2008 Mosley won damages from the UK High Court of for breach of privacy.

Mosley claims that the UK is in breach of human rights laws because there is no remedy for people whose rights have been infringed, other than to go to court after the publication.

In Mosley's case although his privacy was found to have been breached, all the facts are now permanently in the public domain. He recovered a damages award and costs that together totalled 30,000 pounds less than his legal bill.

The European Court of Human Rights in Strasbourg heard the case in January. It was within its power to require the British Government to introduce laws that would require newspapers to give notice before publishing a story about the person's private life. But last week seven judges of the ECHR ruled that the European Convention on Human Rights does not require media to give prior notice of intended publications to those who feature in them. They held that UK privacy law provides an adequate remedy for breach of privacy.

Media organizations are, predictably, describing the ruling as a victory for freedom of expression. They argue that a duty to give notice would have a "chilling" effect on on investigative journalism.

There is a similar debate raging in the UK over "super injunctions". (See Genevieve Lay's SLAW post of 10 May.)

Does the press have a right to publish sex scandals for profit? Is a curb on this right an incursion on freedom of expression that would delay perishable news? Would a notice requirement for such stories inhibit genuine public interest journalism? Wouldn't such privacy injunctions fail if the public interest was at stake? Is a remedy of money damages after publication, truly a remedy?

These are the tough questions. Mr Mosley is considering an appeal.

I am always fascinated by how the law is viewed by non-lawyers. Fiction is always a good place to come across these viewpoints. I saw an excellent example recently when reading John Steinbeck's ,The Grapes of Wrath.

It tells the grim tale of the Joad family, forced off their land in Oklahoma by drought and the economic hardship of the Great Depression.

They pile all of their belongings on to a modified truck and head west, lured by handbills calling for fruit pickers in California. Grandpa dies of a stroke on the road. The family is confronted with the dilemma of whether to report the death and pay undertaker's fees, as required by law, and thereby ruin their chances of getting to California, or bury him themselves. (They run into a similar problem later with Grandma.)

Here is how Pa sees the law:

"Sometimes the law can't be foller'd no way," said Pa. "Not in decency, anyways. They's lots of times you can't. When Floyd was loose an' goin' wild, law said we got to give him up – an' nobody give him up. Sometimes a fella got to sift the law. I'm sayin' now I got the right to bury my own pa. Anybody got somepin to say?
The preacher rose high on his elbow. "Law changes," he said, "but 'got to's' go on. You got the right to do what you got to do."

Sifting the law. Strikes terror in the heart of the lawyer. Obvious to the Joads.

I was surprised to learn, browsing through Bencher election material, that in the UK solicitors have lost the right of exclusive self-governance.

According to candidate Graeme Mew in the UK, self-governance of the profession has been "severely limited". Solicitors in England & Wales, who used to be regulated by their Law Society, are now regulated by the Solicitors Regulatory Authority ("SRA") which is overseen by a Legal Services Board ("LSB"). It is appointed by the government. According to Mew, "The obvious concern is that the governance of the profession will be influenced by government objectives which, in the UK, currently include the decimation of publicly funded legal services."

The London Times reported on 10 March that UK litigation lawyers are “bracing themselves” for the “revolution” of hot tubbing which will shortly be run in a pilot trial in Manchester, England.

More formally known as “concurrent evidence”, hot tubbing is a new method of presenting expert evidence at trial. Opposing experts testify in each other’s presence, as members of a panel, and are questioned in each other’s presence in front of the trier of fact.

It seems to be gathering steam in several jurisdictions, other than the US, as a method of reducing cost and delay in civil litigation.

In Canada, though used in administrative proceedings, the technique has apparently not yet been used in civil litigation trials. However concurrent evidence rules were incorporated into Canada’s Federal Court Rules in August 2010. Supreme Court of Canada Justice Ian Binnie recently expressed his approval for it (2010 49 SCLR 2d 179). A pretrial version of hot tubbing has been added to the Ontario Rules: without prejudice meetings between opposing experts are now among the directions a judge can give where a trial is ordered on a summary judgment motion (Rule 20.05(2)(k)).

Hot tubbing has enjoyed considerable support from senior members of the bench in Australia, where it originated.

Two arguments made in support of hot tubbing are the court’s need for independent and objective expert evidence, and the reduction of court time needed to hear the evidence.

Neither benefit is obvious.

Requiring experts to state their opinion in the presence of their peers may promote more measured opinions. But it may also demote expertise to second place, after the ability of a witness to advocate and justify their opinions in a confrontational panel format. And although leading expert evidence through sequential witnesses may take more court time, to some extent this cost saving is lost by the additional time and cost of preparing experts for the panel presentation and questioning.

A good review of the pros and cons can be found in the paper presented by WeirFoulds partner Greg Richards at an Insight conference on litigation held in Toronto on 1 March 2011.

Hot tubbing is an excellent illustration of how our traditional rights-based legal system, developed over centuries, can adapt to modern conditions. Resort to interest-based resolution systems, such as mediation, is not the panacea for climbing cost and delays. (See my 7 February post on this, Babies And Bath Water. )

But couldn’t they have chosen a more pleasing image? Your average engineer, accountant or scientist, by the time they have attained the eminence necessary to deserve the label of “expert”, you may not want to visualize in a hot tub.

]]> http://www.slaw.ca/2011/03/21/hot-tubbing-evolution-in-litigation/feed/ 0 http://www.slaw.ca/2011/03/07/the-course-of-law/ http://www.slaw.ca/2011/03/07/the-course-of-law/#comments Mon, 07 Mar 2011 23:22:58 +0000 John O'Sullivan http://www.slaw.ca/?p=32315 I frequently stumble across lines that capture precisely a thing I was trying to say on an earlier occasion. Of course, by that time the conversation is long over. It is generally not practical to call up those who were listening to my inarticulate ramblings, and give them the expression I have found (although I am not above trying).

One nice thing about writing on a blog is that you have the perfect means of doing this: the next post.

A few weeks ago I wrote a piece (Babies and Bath Water) about the harm that results to … [more]

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I frequently stumble across lines that capture precisely a thing I was trying to say on an earlier occasion. Of course, by that time the conversation is long over. It is generally not practical to call up those who were listening to my inarticulate ramblings, and give them the expression I have found (although I am not above trying).

One nice thing about writing on a blog is that you have the perfect means of doing this: the next post.

A few weeks ago I wrote a piece (Babies and Bath Water) about the harm that results to the traditional the civil justice system, if it is allowed to atrophy through the diversion of financial and other resources to mediation.

Last weekend I was re-watching the 2005 movie of the Merchant of Venice starring Pacino. When Antonio's ships are lost at sea he is unable to repay a large debt and is bound by contract to give his creditor a pound of his flesh. Antonio's friend tells him the judge will never grant this relief. Antonio replies:

"The Duke cannot deny the course of law: For the commodity that strangers have with us in Venice, if it be denied, will much impede the justice of the state…"

In other words: there will be uncertainty over whether the law will be enforced. This is bad for business.

There can be no doubt that mediation as a method of dispute resolution must be available as a choice. It must be on the menu in a modern judicial system. But there must also be the ability to resort to the law: a person must be able to determine what their rights are; the law must be enforceable; and the outcome must be predictable.

Here's how it might have gone if they had a compulsory mediation rule in 16 Century Venice's commercial court:

Mediator : All right, well thank you all for coming here today. I congratulate you for trying to resolve your differences this way. Now just before we begin, I want to take a moment for us all to consider the cost. (Holding up a chalk board). Mr Shylock, you're unrepresented?"
Shy: (Puzzled) "What?"
Med : "You don't have a lawyer?"
Shy: "No."
Med: "Mr Antonio, what about you?"
Ant: "No. But my friend Bassanio is here."
Bass: "Yes. And I will pay twice the amount the plaintiff is claiming. Look here is a chest full of ducats."
Med: "Well we're getting ahead of ourselves here. I'll come around and talk to each of you privately after we get started. We've got some nice break-out rooms in this modern building, not like that draughty old place down by the public square. Now (writing on chalk board) let's just say each of you could be out in the market making 100 ducats an hour, and suppose we're here all day, that's 8 hours which is 800 ducats for each of you, 1600 ducats, plus my fee, plus the room rental – (displaying the board with a flourish) Look that's 2,000 ducats! Wasted! Mr Shylock why don't you start us off. Tell us what you really want. "
Shy: " Look I don't mean to be rude. I just want my pound of flesh which is what I get under the contract. Even if Bassanio's 6,000 ducats was each divided in to 6, and each sixth was a ducat, I don’t care. "
Med; "But what if you lose?"
Ant: " I admit I signed the contract."
Shy: "See? How can I?"

Mediation wouldn't have worked, but Shylock should have had a lawyer.

]]> http://www.slaw.ca/2011/03/07/the-course-of-law/feed/ 1 http://www.slaw.ca/2011/02/28/insurance-brokers-investment-brokers-law-brokers/ http://www.slaw.ca/2011/02/28/insurance-brokers-investment-brokers-law-brokers/#comments Mon, 28 Feb 2011 20:50:57 +0000 John O'Sullivan http://www.slaw.ca/?p=32013 We are hearing so much these days about the changing landscape of legal services. See 'The End of Lawyers?' by Richard Susskind http://www.susskind.com/endoflawyers.html, or the writings of Jordan Furlong – http://www.law21.ca/consulting-services/ (also see his SLAW contributions).

One recurrent theme in the legal press now is that lawyers enjoy a legislated monopoly over the provision of certain services which do not require legal expertise.

An example often cited is that, apparently, in the 18th century British Prime Minister William Pitt gave solicitors exclusive rights over real estate conveyancing in order to mollify them and gain their support on an issue … [more]

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We are hearing so much these days about the changing landscape of legal services. See 'The End of Lawyers?' by Richard Susskind http://www.susskind.com/endoflawyers.html, or the writings of Jordan Furlong – http://www.law21.ca/consulting-services/ (also see his SLAW contributions).

One recurrent theme in the legal press now is that lawyers enjoy a legislated monopoly over the provision of certain services which do not require legal expertise.

An example often cited is that, apparently, in the 18th century British Prime Minister William Pitt gave solicitors exclusive rights over real estate conveyancing in order to mollify them and gain their support on an issue of the day.

Many writers on this topic warn that lawyers should not expect they will continue to enjoy these monopolies indefinitely. The question of lawyers' exclusivity, including over will preparation and conveyancing, is presently under review in the UK. There, supermarket chains among others, are vying for the right to offer conveyancing and other routine legal services to their customers.

Is the Ontario rule of professional conduct that prevents lawyers from paying a referral fee, except to other lawyers, one of these antiquated, unjustifiable rules that has the effect of protecting the legal market for lawyers?

If not, what "mischief" does it prevent? How does it benefit the public?

Rule 2.08(8) of the Ontario Rules of Professional Conduct stipulates:

(8) A lawyer shall not (a) directly or indirectly share, split, or divide his or her fees with any person who is not a licensee, or (b) give any financial or other reward to any person who is not a licensee for the referral of clients or client matters.

This rule prevents the development of a brokerage industry for legal services, such as exists for the insurance industry. Under such a system, the public could hire a person intimately familiar with the legal marketplace, to help them analyze the type of legal service they need and find the best lawyer for the job, at the best price. Clients such as corporations not large enough to have in house counsel, who use a variety of legal services – employment, corporate, leasing – might be particularly well-served: rather than automatically refer all their matters to their existing lawyer out of habit, they would have the option of working with a broker who could assist them in navigating the seas of legal service providers for the most competitive ones.

There are obvious economies and efficiencies to this approach. Best of all for the client, if lawyers were permitted to pay the broker a commission on the fees generated, the broker's service, like the insurance broker's services, would be free to the client.

It is true that some brokers would become sales people for particular lawyers, but, providing the commissions are fully disclosed, the public is capable of seeing this, just as it sees that investment brokers and insurance brokers have their particular allegiances.

If people are willing to engage brokers to connect them to an appropriate legal service provider, and to assist in delivering competitive legal retainer contracts, what basis is there for the LSUC Rules of Professional Conduct to prohibit it?

]]> http://www.slaw.ca/2011/02/28/insurance-brokers-investment-brokers-law-brokers/feed/ 4 http://www.slaw.ca/2011/02/14/the-bars-turn/ http://www.slaw.ca/2011/02/14/the-bars-turn/#comments Mon, 14 Feb 2011 19:16:59 +0000 John O'Sullivan http://www.slaw.ca/?p=31404 At a legal function last week I heard the often quoted lines from King Henry VI "The first thing we do, let's kill all the lawyers." Lawyers are quick to point out that this is a speech by a villain. The plan is that once the lawyers are gone, there will be no impediment to villanry: there will be no one to assert rights.

I warmed to my theme: the unintended consequences of promoting mediation at the expense of the traditional civil trial system.

If mediation supplants rights-based dispute resolution, this does not mean villanry, but it does mean that … [more]

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At a legal function last week I heard the often quoted lines from King Henry VI "The first thing we do, let's kill all the lawyers." Lawyers are quick to point out that this is a speech by a villain. The plan is that once the lawyers are gone, there will be no impediment to villanry: there will be no one to assert rights.

I warmed to my theme: the unintended consequences of promoting mediation at the expense of the traditional civil trial system.

If mediation supplants rights-based dispute resolution, this does not mean villanry, but it does mean that a generation later, the machinery for asserting rights (civil trial lawyers and judges, judicial precedent) will likely be rusty and broken.

There can be no doubt that there must be an alternative to the standard civil trial method of dispute resolution. It is not for everyone. Mediation must be a realistic option.

But it is equally true that the traditional trial process must remain a parallel, viable option for those who choose to assert their rights.

A vibrant trial system is also essential for mediation to work: mediation depends on the ability to enforce rights economically and promptly if no settlement is reached. Otherwise it is merely spear rattling, and it favours the sophisticated, solvent defendant.

There are two pre-requisites to a healthy trial process. The first stems from the simplest law of economics: the cost must be proportionate to the risk. The second is that it must be possible to get a dispute in front of an impartial judge or jury, within a reasonable time after a party has requested it, and without unnecessary procedural obstacles.

If lawyers can't deliver the first, then the second doesn't matter. If the judicial system can't deliver the second, then the lawyers will be unable to deliver the first.

But the judicial system has delivered. The 2010 amendments to the Ontario rules of procedure, including the new rules of summary judgment and proportionality, have created a yawning opportunity for the bar to serve the public better than has been possible for years. It is now possible to carve out the key issue in a case and get it in front of a judge for trial. There are new, powerful grounds to prevent abusive litigation through attrition.

It is the bar's turn now.

]]> http://www.slaw.ca/2011/02/14/the-bars-turn/feed/ 5 http://www.slaw.ca/2011/02/07/babies-and-bath-water/ http://www.slaw.ca/2011/02/07/babies-and-bath-water/#comments Mon, 07 Feb 2011 18:24:41 +0000 John O'Sullivan http://www.slaw.ca/?p=31151 Mediation is frequently promoted on the ground that it reduces the cost and delay inherent in litigation, and in this way it increases access to justice.

Leave aside the issue of whether mediation reduces cost and delay. Does it increase access to civil justice?

If "justice" is the impartial application of the law to evidence in accordance with the rules of procedural fairness, the answer is obviously, No. In mediation the parties resolve their dispute through agreement.

What mediation can do however is increase access to affordable dispute resolution.

This of course is a worthwhile goal, but it is important … [more]

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Mediation is frequently promoted on the ground that it reduces the cost and delay inherent in litigation, and in this way it increases access to justice.

Leave aside the issue of whether mediation reduces cost and delay. Does it increase access to civil justice?

If "justice" is the impartial application of the law to evidence in accordance with the rules of procedural fairness, the answer is obviously, No. In mediation the parties resolve their dispute through agreement.

What mediation can do however is increase access to affordable dispute resolution.

This of course is a worthwhile goal, but it is important to remember that it is not the same thing as increasing access to justice.

The common linkage today of 'mediation' and 'access to justice' indicates that we are in danger of conflating the two: that we may be slipping into the habit of thinking mediation delivers justice.

There is a bright line between mediation and traditional civil justice. To put it in commercial terms, they are very different products.

Mediation is being embraced in many common law jurisdictions to solve the problems of civil justice. But in our exuberance for dismissed actions today, are we keeping an eye on the consequences for tomorrow?

We are entering a world in which the majority of Ontario civil litigation lawyers in their careers will likely never conduct a trial to judgment. The corollary is that judges will preside over fewer and fewer civil trials. As the ranks of civil trial counsel and judges thin out, the trial will atrophy as a civil dispute resolution option. As more disputes are mediated, the flow of civil judicial precedent will decrease.

Unquestionably, the cost of civil justice is now beyond the reach of most individuals, and a large swath of corporations too. It is clear that something has to be done about it.

But in mediation should we see salvation? Or are we throwing the baby out with the bath water?

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