Staying Relevant

Evidence: fieldnotes

Image by Mónica, M via Flickr

In “Where’s the Proof?” , Scott Greenfield at Simple Justice addresses the disturbing trend among U.S. law schools in no longer making Evidence courses a compulsory part of the law school curriculum. Greenfield posits,

Is this really the limited understanding that new lawyers have of their profession? Can they possible think so small and grasp so little?

The teaching of evidence in law school is not in anticipation of someone being a litigator. Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that’s not where it ends. Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law. Yes, M&A. Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence. Why? Because every aspect of law entails a potential of dispute leading to litigation. Any lawyer who doesn’t comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer. If you don’t get them, you can’t think. You can’t reason. You can’t understand things the way a lawyer must.

The Canadian law school experience is disturbingly similar. While some law schools like the University of Calgary Faculty of Law still include Evidence as an upper-year requirement, others, like my alma mater, Osgoode Hall Law School, do not.  For upper year courses, Osgoode Hall Law School now offers 125 courses and seminars and offers 4 curricular streams or  participating in a moot, clinical or intensive program, international exchange, etc. According to the Osgoode Hall Law School website:

In 2001-2002, Osgoode Hall Law School introduced a significant innovation in the upper-year curriculum. Students have the opportunity to concentrate their studies in a particular subject area of the curriculum. This year curricular streams are being offered in the following four subject areas: International, Comparative and Transnational Law; Litigation, Dispute Resolution and the Administration of Justice; Tax Law; and Labour and Employment Law. It is not imagined that all, or even most, students will elect to enrol in one of the streams being offered this year. All students, whether enrolled in a stream or not, will have equal access to all courses offered in the upper-year curriculum. However, those students with a particular interest in one of the subject areas covered by the offered streams may wish to consider enrolling.

Osgoode Hall Law School has a rich, diverse and fully elective upper-year curriculum. Within this curriculum, students are generally able to plan a course of studies that enables them to pursue their special interests, that is consistent with their individual learning styles, and that ensures they obtain an excellent and comprehensive legal education. The purpose of organizing some of the upper-year courses into streams is to provide more structure to aspects of the upper year curriculum and to allow certain curriculum goals to be pursued more systematically. By providing an organized sequence of courses in particular subject areas the curricular streams will challenge students to undertake truly advanced work on difficult and complex legal problems. This will enable students to build cumulatively on the skills and knowledge they have acquired in other law school courses, to develop sufficient expertise in the subject area that they can confidently challenge underlying concepts and assumptions, and to collaborate intellectually in the subject area with scholars, public policy analysts and practitioners. Another purpose of the curricular streams is to ensure that within a coherent course of studies students are exposed to the significant theories, principles, conceptual frameworks and tools of policy analysis needed for the serious study of the law and to the full range of important lawyering skills such as problem solving, legal analysis and reasoning, legal research, factual investigation, communication skills, and recognizing and resolving problems of professional responsibility. Also, a capstone course in each curricular stream will enable students to engage in a major exercise of research and writing that will consolidate, deepen and enrich their understanding of the law.”

I’m all for pedagogical innovation and making law school a more enriching, self-actualizing experience.

The problem that Scott Greenfield identifies applies equally to Canadian law schools. If a law student can through three years of professional legal education without taking a basic course of the law of evidence, how can this fledgling lawyer provide competent legal advice to his or her clients? Yes, I know that not every law student goes into criminal law, civil litigation or administrative law. Yet, as Greenfield astutely points out, the knowledge of evidentiary rules is fundamental to the practice of law. As in-house corporate counsel, if you cannot distinguish legal relevancy, how can you advise a client to produce relevant documents? If you do not understand the basics of privilege, how can you advise a client how to not waive that privilege?

At Osgoode Hall Law School, the only upper year curriculum stream that requires taking an Evidence course is “Litigation, Dispute Resolution, and the Administration of Justice”. Admittedly, the intensive course in Criminal Law includes Evidence law as a requirement, but shouldn’t all students be taught a basic Evidence course?

While some other Canadian law schools still require students to take Evidence in upper year, I note that University of Toronto Law School offers even more elective courses than Osgoode Hall (180) and Evidence is also not a compulsory course.

Some will undoubtedly ask: So what?

Consider the shift in the legal market in the provision of electronic discovery and document review services from law firms to third party vendors. Mark Hermann at Above the Law identifies the changing legal landscape when he writes,

But, when you’re forced to think for a minute about electronic discovery and document review, you realize that the battle previously waged between law firms and third-party vendors to capture this work is now largely over: Document review, which was historically an important profit center for large law firms, has moved permanently into the hands of third-party vendors. That sea change was not prompted by the recession, and things are not going to return to the old “normal” after the economy recovers. Companies that continue to rely on law firms, rather than third-party vendors, to do large document reviews are probably making a mistake, and law firms that are counting on document review projects to resuscitate their profitability are betting on the wrong horse.

Putting aside the glaring and irreducible ethical conflicts that arise from outsourcing confidential legal work to nebulous cloud computing service providers or off-shore cheap labour, the reality is that the lawyer-client relationship remains fiduciary in nature. Whether the outsourced work can be done  faster, cheaper, and more efficiently by third party vendors is wholly irrelevant. What is relevant (legally, ethically and factually) is that the tension between a client’s disclosure obligations and the client’s rights to confidentiality and privacy is subject to a laybrinthe of municipal, provincial and federal statutes, regulations and technical rules of civil procedure and law of evidence; all of which continues to grow apace. It is the lawyer, not some third party agent, who is the sentinel of a client’s confidences and legal rights.  The buck stops here, not somewhere out there.

Professional competence requires knowledge of substantive, procedural and evidentiary law. Anything less is not “betting on the wrong horse”, it’s trying to close the barn door after the horse has bolted and you’re left cleaning out the stable.

 Recommended Reading:

Sopinka, Lederman & Bryant, The Law of Evidence in Canada (Third Ed.) (Markham: Ontario, LexisNexis Canada Inc. 2009).

Ronald J. Delisle and David Tanovich, Evidence: Principles and Problems (9th Ed.) (Toronto, Ontario: Carswell, 2010)

James C. Morton, Ontario Litigator’s Pocket Guide to Evidence (3rd Ed.) (Markham, Ontario: LexisNexis Butterworths, 2005)

The Hon. Mr. Justice Donald S. Ferguson, Ontario Courtroom Procedure 2009 (Markham, Ontario: LexisNexis, 2008)

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