Blame the Lawyers

I’m confused. Really, really confused. 
It appears that I, along with my fellow civil litigators and trial lawyers, have been suffering under a mass cognitive illusion.
This particular group psychological affliction is far more subversive and deleterious than one might think. You see, the problems inherent in the civil justice system which prompted the recent amendments in the Ontario Rules of Civil Procedure are neither systemic, nor institutional, nor socio-economic, in nature. No, it appears as though the lack of equal access to justice is the fault of lawyers who cannot control their clients’ expectations, thereby threatening to tear asunder the pillar of justice known as proportionality.

In a recent Law Times article, Michael McKiernan writes,

Lawyers need to stand up to their clients if the concept of proportionality is to hold any weight in the civil justice system, says an Ontario Superior Court judge.

Justice John Murray was on a panel as part of the Warren K. Winkler Lecture on Civil Justice Reform held at Osgoode Hall last week. The annual event, now in its fourth year, focused on the theme of procedure, proportionality, and professionalism.

“Lawyers have a professional obligation to identify rationally achievable objectives and manage expectations,” Murray said.

“It means being selective, being constrained to make only meritorious arguments, not arguments that clients might want to hear, and it means rejecting tactics that result in long-term pain for clients or their opponents.”

What about judges, the “gatekeepers to justice” then? Well, according to Mr. Justice Murray, who sits in Milton, Ontario, 

“judges also have a role to play. He encourages them to exercise more discretion in deciding costs and limiting the scope of litigation.”
‘We are too concerned with interfering with costs,’ he said. ‘And we have a reluctance to intrude into cases to ensure early identification of issues which need to be tried and those that don’t.’
So far, so good? 
Let’s recap.
1. Difficult and unrealistic clients.

2. Wimpy or greedy lawyers.

3.  Judges who are not proactive enough.
Wait, let’s add to the list of usual suspects. According to Chief Justice François Rolland of the Quebec Superior Court:
“It takes a generation to change mentality,” he said. “So far, we have not been successful. When the young lawyer is practising litigation, he ends up fighting in court, spending money, and tends to forget the rule of proportionality.”

Despite the bar’s support, Rolland said the nature of the adversarial system makes it easy to undermine a proportional approach.

“There will always be one more procedural step or one more issue to be raised,” he said. “I have noticed that in law faculties and at bar schools, we are still teaching lawyers to become warriors instead of being problem solvers.” [emphasis added]

Really? So, the problem is young lawyers who don’t understand proportionality? And it’s the law schools which are proselytizing  these initiates to the temple, adorning them with the décolletage of flowing gowns and arming them with a a metaphorical sword to mete out warrior justice?

This is classic post hoc ergo propter hoc fallacious reasoning. (For those who never studied logic, don’t put the cart before the horse).

The adversarial system is, surprisingly, adversarial. It is not inquisitorial, like the continental civil law systems, although many of my colleagues muse that some judges suffer from “judge-itis” when they are first elevated to the bench. “I would be greatly obliged, Your Honour, if you would stop cross-examining my client.”

It seems as though the civil justice system is always “under repair”. Early in my legal career, the civil reform buzzwords were “cost” and “delay”.Here’s a great quote from the introduction to the Ministry of the Attorney General’s First Report on  “First Report on The Modern Civil Justice System (March 1995):

“When the system works, it works well, and many cases testify to that; But when it goes off the rails, people tend to remember the bad experience. It’s not perfect, but its better than a shotgun in a field, like in some other countries.” —Citizen at a public meeting

More gold from the First Report:

“The public comes to the justice system in a number of capacities. The members of the public are taxpayers. They are voluntary or involuntary users and clients. They are electors of the political representatives who have ultimate responsibility for the shape and funding of the system.
In spite of these various capacities, members of the public play very little direct role in the design and administration of the system, which exists for their benefit. Their mood, however, is no longer one of acceptance of this state of affairs.”

So how should lawyers “manage their client’s expectations”? Easy as 1-2-3.

1. Always have the client sign a written retainer agreement which clearly sets out the client’s expectations and litigation objectives.

2. Utilize effective client communication, which means more than just active listening, and means regularly providing the client with file developments, changes in legal strategy or tactics, as circumstances dictate; and

3. Obtain the client’s instructions to move under the new amended Rule 20 of the Rules of Civil Procedure, when appropriate. After all, motion judges may now weigh evidence, assess credibility and actually grant summary judgment where there is no genuine issue for trial.

Finally, I would greatly appreciate if judges stuck to what they know best. Judging in a court of law, not the court of public opinion. We trial lawyers have it hard enough as it is.

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