The Bar’s Turn
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.
Lawyers who are quick to point out that the butcher was a villain should read this.
I agree that the 2010 amendments to the Rules have generally created a “yawning opportunity”. The problem is that the “if it ain’t broke, then fix it anyway” approach to civil justice reform belies the fact that litigation is economically-driven. When the economy is strong, people generally tend to honour their contractual obligations. They pay their bills on time, including their lawyer’s accounts.
Certainly, motor vehicle accidents continue to happen, but foisting onto motion judges the responsibility to determine summary judgment motions on the basis of assessing credibility on affidavit evidence, rather than viva voce testimony, does little to instill confidence in the minds of litigants that they have had their “day in court”.
Moreover, proportionality is a laudable principle, but few Masters have the luxury of time or interest to wade through mountains of documents while listening to anxiety-ridden articling students and junior counsel try to explain the RELEVANCE” of a document to the issues raised in the “PLEADINGS” or who should have to pay the costs of production.
My recent experience with e-discovery and documentary discovery generally is that there remains a segment of our esteemed Bar that will always bend the rules, if not break them. Case in point: Discovery Plans that are agreed to and then resiled from at the eleventh hour.
There is a concerted campaign waged to reduce the costs of litigation on the backs of lawyers. To many clients, this is a welcome development. To many lawyers, the line in the sand is drawn. You get what you paid for. The business of law and the profession of law are fast becoming mutually exclusive. In my view, “That what doesn’t kill you doesn’t make you stronger; it wounds you into retreat and ultimate surrender.” It’s time the Bar stood up for itself instead of being the cabin boy as the captain and shipmates look upon them, ominously brandishing their forks and knives.
The “kill all the lawyers” matter seems to be a deal more complex than even Jason’s reference makes out. No doubt the king was exacting more tribute from the peasants and others than was fair—it is the way of kings–but Cade reviled lawyers because they could write and because they wielded the seal that turned parchment into truth, something that in the view of many, only the Pope could do. See: “Jack Cade, the Skin of a Dead Lamb, and the Hatred for Writing“. There’s an element of the perennial struggle between oral and written here that still echoes today (though for other reasons).
Interesting contributions on Henry VI, thank you all.
On Antonin’s comment, one beauty of the amendments is that motions judges are no longer confined to affidavit evidence – they can now order oral evidence for the purpose of weighing evidence, evaluating credibility or drawing inferences. Litigants can get their day in court without the necessity of a full trial.
Beauty is in the eye of the beholder. I’m not as enamored with the mini-trial format for summary judgment motions. If a motion judge “orders oral evidence for the purpose of weighing evidence, evaluating credibility or drawing inferences” then this is the functional equivalent of a voir dire, of sorts. In any event, I imagine that a crafty litigant can file multiple affidavits from different witnesses, both lay and expert, and the court will be faced with a trial within a trial.