Achieving the Fundamental Goal of the Civil Justice System
Justice David Brown delivered a paper on 21 November 2014 at the Carleton County Law Association Annual Meeting in which he sets out a 5 point action plan for moving the judicial system towards achieving its fundamental goal – the fair, timely and cost effective determination of civil cases on their merits.
You can read it here: 2014.Carleton.Cty.LA.final.Mt.Tremblant.nov
This is “Part 2” to the paper Justice Brown presented last June at the OBA end of term dinner on creating a sustainable civil justice system. (My post on it is here.)
It offers some concrete solutions to some of the problems identified in the June paper.
The action plan is :
1. Front end assignment of trial dates upon close of pleadings;
2.Focus judicial resources on: interlocutory remedies to preserve status quo; case management to keep the proceedings within the time set for it, and final hearing on the merits;
3.Re-think the interlocutory process for determining production and discovery disputes;
4.Re-define hearings so as to allocate more time for judges to review material and less time for oral hearings in interlocutory matters, and hybrid rather than conventional trials;
5.Electronic filing, exchanging and managing case related information.
Those are all good suggestions John, especially the early setting of trial dates.
I would suggest big efficiencies could be gained with a few simple approaches:
1) Appoint a judge or master as case manager to a file as soon as pleadings have been filed.
2) Have all applications and discovery issues resolved in writing by default, with the option for the case manager to set a hearing date if required, in consultation with counsel.
3) Have a heavier fee associated with applications, and require prompt payment of costs, including the fee, by the losing party as a default position for most applications.
4) If urgent, allow for oral hearing before any judge or master, but teleconference etc. with case manager should be attempted first.
5) Hot tubbing of expert witnesses, or single court appointed expert witnesses unless there is a clear reason why multiple competing experts are required.
6) Booking trial dates in advance should be optional, rather than compulsory after close of pleadings, as in many cases the number of days required could vary greatly after discovery procedures have narrowed (or expanded) the issues. Being able to reserve 2 days on filing would be great for many simpler matters, but being forced to decide between 5 or 10 days on a more complex matter would lead to either scheduling nightmares or injustice.
7)All court dates and availability should be readily assessed online, and bookable online upon filing your application.
The net effect being that when it comes time for a hearing, your judge or master will have read the material, be prepared, you’ll all know how much time you have, and when it will be heard. You dont get bounced, you don’t show up and spend the day in chambers, and judges don’t get hit with a 2 hour motion condensed into 40 minutes and no chance to review the materials or clearly inadequate materials.
Outcomes for civil cases would be much improved by the development of standardized decision making trees, as is normal in the medical world.