Page 14 - ILCO March 2016 Newsletter
P. 14
WHAT IS PROPORTIONALITY, ANYWAY? CONTINUED
The Honourable Colin L. Campbell, Q.C.
BEST PRACTICES AND the joint task force updated the 2009 principles half of what might ultimately be recovered if
PROFESSIONALISM and reported on some of the pilot projects in the it could be obtained in half the time and at
United States spawned by the 2009 report. Two half the cost. Knowing the outcome that a
Two recent publications of The Advocates’ of the revised principles are especially worth client really wants and the amount the client
Society provide a framework for individuals noting. Principle 13 states that “[p]roportionality is willing to see spent can be the keys to
– including members of the judiciary – should be the most important principle applied deciding how to proceed.
who are willing to shorten the trial process to all discovery.” Principle 15 recommends that,
and lessen the costs. These goals are the “shortly after the commencement of litigation, Know the lawyer and/or the client on the
hallmarks of proportionality. each party should produce all known and other side. If you don’t know the lawyer
reasonably available non-privileged, non-work- or client on the other side by reputation,
The first publication, Best Practices for product documents and things that support or try to find out about them and their
Civil Trials (2015), focuses on four contradict specifically pleaded factual allegations.” attitude as soon as you can. Knowledge
areas: case management, trial planning The latter principle does not in any way diminish that an insured defendant will be strongly
and management, use of documents and the obligation under the Rules. It simply allows or fiercely represented – in even the least
technology at trial, and expert advice at trial. for a much earlier assessment of where the action meritorious case – allows for planning. In
Each area emphasizes co-operation and is heading through an early exchange of key such a situation, proportionality may have a
recognizes that the civil litigation process documents. different application than it otherwise would.
cannot be sustained if the old “scorched- Even those clients opposite or their lawyers
earth” approach were to prevail. One could EARLY MEDIATION with reputations for fierce representation
in fact say that proportionality is nothing can be persuaded to accept a reasonable
more than the application of common Rule 24 provides for mandatory mediation and timetable (sometimes with judicial help)
sense – the reasonable accommodation of applies to the cities of Ottawa and Toronto as when they know they will obtain all the
all interests in the case, including that of well as Essex County. While not all mandatory information necessary to proceed with
the court. The second Advocates’ Society mediations take place at an early stage, early proportionality.
publication, Best Practices from the Institute mediations are part of a growing feature of civil
for Civility and Professionalism, draws litigation, by which lawyers and clients alike can The word zealous was once associated with
on the Society’s Principles of Civility and take advantage of the opportunity to assess the good advocacy. That adjective has now been
Professionalism and is particularly useful strengths and weakness of their cases up front. If replaced because, in the world of high costs
for young lawyers. Among the most the matter settles, a good deal of time and money and scarce judicial resources, disruptive
helpful elements of these Best Practices are is saved. For most clients, this is a much more tactics have no place. They will be seen by
guidelines on dealing with lawyers who are satisfactory result than a costly forced settlement judges not to be proportional.
less inclined to be co-operative. on the eve of trial.
Proportionality is what the participants in
Some will say that such tools and best If counsel co-operate to the extent envisaged the civil justice system make of it. Let us
practices are nothing more than statements in the Report of the American College of Trial hope it will foster change.
of the obvious. Those who take that view, Lawyers and exchange essential documents, then, NOTES
however, miss the importance of what is even if the action doesn’t settle, they can achieve 1) The US federal rules present the same problem – balancing
happening in the community. The legal an early and informed response to where the proportionality with the requirement to disclose – but in reverse. The
culture and changing market forces are action is going. requesting party is entitled to obtain copies of all potentially relevant
documents it requires that are in the possession of the opposing side.
demanding more efficient and less costly 2) 2014 SCC 7.
legal services. Courts, rule makers and SMARTS 3) Task Force on the Discovery Process in Ontario: Report
professional bodies are leading the way. (Toronto: Ontario Ministry of the Attorney General/Superior
One way or another, those who try not In the now dark ages of the 1960s, most lawyers Court of Justice, 2003) (Chair the Honourable Mr. Justice
Colin Campbell), online: to follow will be left behind. who practised civil litigation personally knew the publications/discoveryreview/>.
lawyer on the other side of an action. As well, the 4) The Sedona Conference Working Group 7, Sedona Canada, The
Sedona Canada Principles (2008), online: The development of best practices is, of responses of institutional clients (banks, insurers, info/sedona- canada/2008principles_en.pdf>.
course, not confined to Ontario. One of governments) were generally predictable, making 5) Best Practices for Civil Trials (Toronto: The Advocates’ Society, June
the inspirations for the two Advocates’ it much easier to plan a litigation strategy. 2015), online: Advocates%20Society%20%20Best%20Practices%20for%20Civil%20
Society publications noted above was the Trials%20 -%20June%202015.pdf>.
work carried out by a joint task force of the With the growth in the number of practising 6) Best Practices (Toronto: The Advocates’ Society Institute for Civility
American College of Trial Lawyers together lawyers, the merger of insurance companies and and Professionalism, 2013), online: files/pdf/ publications/Best%20Practices.pdf>.
with the Institute for the Advancement of other large clients and, significantly, the reliance 7) Final Report on the Joint Project of the American College of
the American Legal System. In its 2009 on in-house counsel, it has become increasingly Trial Lawyers Task Force on Discovery and the Institute for the
report, the joint task force recommended complicated to predict the response of those on Advancement of the American Legal System (Denver, CO:IAALS and
ACTL, 2009), online: Social Science Research Network: the development of pilot projects using the other side. However, the basic premises for com/abstract=1362072> or .
principles developed for improvements in achieving proportionality in dealing with one’s 8) Reforming Our Civil Justice System: A Report on Progress &
Promise - A Joint Project of the American College of Trial Lawyers
discovery. Those principles include many client and with the lawyer and client on the other Task Force on Discovery and Civil Justice and IAALS - the Institute
of the best practices for the management of side, still remain the same. for the Advancement of the American Legal System (Denver, CO:
IAALS and ACTL, 2015), online: civil litigation referred to above. files/documents/publications/report_on_progress_and_promise.pdf>.
Know your client. At the earliest point in the This article is reprinted with the permission of the
In a 2015 report, Reforming Our Civil Justice retainer, begin to ascertain the client’s ultimate author. It was originally published in The Advocates’
System: A Report on Progress and Promise, goal. Many plaintiffs would be content to take Journal, Winter 2015 issue.
14 LAW CLERKS’ REVIEW, MARCH 2016
The Honourable Colin L. Campbell, Q.C.
BEST PRACTICES AND the joint task force updated the 2009 principles half of what might ultimately be recovered if
PROFESSIONALISM and reported on some of the pilot projects in the it could be obtained in half the time and at
United States spawned by the 2009 report. Two half the cost. Knowing the outcome that a
Two recent publications of The Advocates’ of the revised principles are especially worth client really wants and the amount the client
Society provide a framework for individuals noting. Principle 13 states that “[p]roportionality is willing to see spent can be the keys to
– including members of the judiciary – should be the most important principle applied deciding how to proceed.
who are willing to shorten the trial process to all discovery.” Principle 15 recommends that,
and lessen the costs. These goals are the “shortly after the commencement of litigation, Know the lawyer and/or the client on the
hallmarks of proportionality. each party should produce all known and other side. If you don’t know the lawyer
reasonably available non-privileged, non-work- or client on the other side by reputation,
The first publication, Best Practices for product documents and things that support or try to find out about them and their
Civil Trials (2015), focuses on four contradict specifically pleaded factual allegations.” attitude as soon as you can. Knowledge
areas: case management, trial planning The latter principle does not in any way diminish that an insured defendant will be strongly
and management, use of documents and the obligation under the Rules. It simply allows or fiercely represented – in even the least
technology at trial, and expert advice at trial. for a much earlier assessment of where the action meritorious case – allows for planning. In
Each area emphasizes co-operation and is heading through an early exchange of key such a situation, proportionality may have a
recognizes that the civil litigation process documents. different application than it otherwise would.
cannot be sustained if the old “scorched- Even those clients opposite or their lawyers
earth” approach were to prevail. One could EARLY MEDIATION with reputations for fierce representation
in fact say that proportionality is nothing can be persuaded to accept a reasonable
more than the application of common Rule 24 provides for mandatory mediation and timetable (sometimes with judicial help)
sense – the reasonable accommodation of applies to the cities of Ottawa and Toronto as when they know they will obtain all the
all interests in the case, including that of well as Essex County. While not all mandatory information necessary to proceed with
the court. The second Advocates’ Society mediations take place at an early stage, early proportionality.
publication, Best Practices from the Institute mediations are part of a growing feature of civil
for Civility and Professionalism, draws litigation, by which lawyers and clients alike can The word zealous was once associated with
on the Society’s Principles of Civility and take advantage of the opportunity to assess the good advocacy. That adjective has now been
Professionalism and is particularly useful strengths and weakness of their cases up front. If replaced because, in the world of high costs
for young lawyers. Among the most the matter settles, a good deal of time and money and scarce judicial resources, disruptive
helpful elements of these Best Practices are is saved. For most clients, this is a much more tactics have no place. They will be seen by
guidelines on dealing with lawyers who are satisfactory result than a costly forced settlement judges not to be proportional.
less inclined to be co-operative. on the eve of trial.
Proportionality is what the participants in
Some will say that such tools and best If counsel co-operate to the extent envisaged the civil justice system make of it. Let us
practices are nothing more than statements in the Report of the American College of Trial hope it will foster change.
of the obvious. Those who take that view, Lawyers and exchange essential documents, then, NOTES
however, miss the importance of what is even if the action doesn’t settle, they can achieve 1) The US federal rules present the same problem – balancing
happening in the community. The legal an early and informed response to where the proportionality with the requirement to disclose – but in reverse. The
culture and changing market forces are action is going. requesting party is entitled to obtain copies of all potentially relevant
documents it requires that are in the possession of the opposing side.
demanding more efficient and less costly 2) 2014 SCC 7.
legal services. Courts, rule makers and SMARTS 3) Task Force on the Discovery Process in Ontario: Report
professional bodies are leading the way. (Toronto: Ontario Ministry of the Attorney General/Superior
One way or another, those who try not In the now dark ages of the 1960s, most lawyers Court of Justice, 2003) (Chair the Honourable Mr. Justice
Colin Campbell), online:
lawyer on the other side of an action. As well, the 4) The Sedona Conference Working Group 7, Sedona Canada, The
Sedona Canada Principles (2008), online:
course, not confined to Ontario. One of governments) were generally predictable, making 5) Best Practices for Civil Trials (Toronto: The Advocates’ Society, June
the inspirations for the two Advocates’ it much easier to plan a litigation strategy. 2015), online:
Society publications noted above was the Trials%20 -%20June%202015.pdf>.
work carried out by a joint task force of the With the growth in the number of practising 6) Best Practices (Toronto: The Advocates’ Society Institute for Civility
American College of Trial Lawyers together lawyers, the merger of insurance companies and and Professionalism, 2013), online:
with the Institute for the Advancement of other large clients and, significantly, the reliance 7) Final Report on the Joint Project of the American College of
the American Legal System. In its 2009 on in-house counsel, it has become increasingly Trial Lawyers Task Force on Discovery and the Institute for the
report, the joint task force recommended complicated to predict the response of those on Advancement of the American Legal System (Denver, CO:IAALS and
ACTL, 2009), online: Social Science Research Network:
principles developed for improvements in achieving proportionality in dealing with one’s 8) Reforming Our Civil Justice System: A Report on Progress &
Promise - A Joint Project of the American College of Trial Lawyers
discovery. Those principles include many client and with the lawyer and client on the other Task Force on Discovery and Civil Justice and IAALS - the Institute
of the best practices for the management of side, still remain the same. for the Advancement of the American Legal System (Denver, CO:
IAALS and ACTL, 2015), online:
Know your client. At the earliest point in the This article is reprinted with the permission of the
In a 2015 report, Reforming Our Civil Justice retainer, begin to ascertain the client’s ultimate author. It was originally published in The Advocates’
System: A Report on Progress and Promise, goal. Many plaintiffs would be content to take Journal, Winter 2015 issue.
14 LAW CLERKS’ REVIEW, MARCH 2016
