So Long, Farewell

Harakiri (1962) DIRECTOR: Masaki Kobayashi

Following my initial reaction, I have had some more time to reflect on the recent decisions of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 and  Bruno Appliance and Furniture, Inc. v. Hryniak2014 SCC 8 [collectively “Hryniak“] and what it means, in the wake of Hryniak, to have a blog called “The Trial Warrior“.

Frankly, I am experiencing severe cognitive dissonance.

I started this blog back on August 10, 2009 with modest objectives: to write about legal topics that interested me and hopefully my readers and to share ideas, arguments and trends with other blawgers.

My subject-matter was, admittedly, esoteric — cutting a wide swath from civil litigation to international law to professionalism and ethics —- but it was the greatest vehicle to participate in the Blawgosphere and meet some great legal minds along the way, some of whom I have had the distinct privilege in meeting in person or talking over the phone. Mind you, the legal blawging community has changed dramatically since I started, as it had in the first wave in the early 2000’s.

I often blogged about trial strategy and tactics, but I noticed, in the last couple of years, fewer and fewer reported trial decisions and appeals. Yes, I am aware of the oft-repeated statistic (anecdotal or apocryphal as it may be) that 95% of civil cases settle or are dismissed before trial. So what about the other 5%? While I continue to have a number of my own cases go to trial, I expect a major seismic event in the the conduct of a trial of an action in the Ontario courts, especially in Toronto.

C’est la vie. C’est la guerre.

What troubles me greatly is not the name of this personal blawg: I could have used a catchier title or theme. This one stuck over the years. I could change the name to “EXTREME HAIL DAMAGE ATTORNEY BLOG ™ ” or “THE HTRATCTTTCATHOUH BLOG ™”.

So what’s my problem, you ask?

Here’s what the Court of Appeal for Ontario said about the purpose of summary judgment and the primacy of the civil trial in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII) :

[38]         However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. [emphasis in the original]

Now, compare what the  Supreme Court of Canada’s view in Hryniak v. Mauldin, 2014 SCC 7 :

[2]                              Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.  This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.  The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [emphasis added]

Thanks to my fellow blawgers: Scott Greenfield, Mark Bennett, Brian Cuban, Ken White, Gideon, Rick Horowitz, Karim Renno, Keith Lee, Eric Turkewitz and many others who have been gracious in linking to my posts and challenging my preconceptions, biases, nescience and cantankerousness.

I may start up a new blawg, eventually. In the meantime, I wish to express my gratitude to my regular readers. I will not commit seppuku and shut down The Trial Warrior Blog; rather, I will indulge in the irony of the death of the civil trial in Canada by keeping it as an internet monument, until it gets ripped off by some splogger.


Antonin I. Pribetic

8 Responses to “So Long, Farewell”

  1. shglaw Says:

    Whether Hryniak is a funeral dirge or a call to arms is up to you, my friend. If it were me, I would not take it. Too many people need your thoughts to go quietly into the night.

  2. Antonin I. Pribetic Says:

    Thanks, Scott. I truly appreciate your collegiality and friendship. It’s been a fun ride, but this is a crise de conscience. I hope to return with a renewed sense of purpose in blawging in the future. In the meantime, I will continue to read Simple Justice daily. Best, Nino

  3. shglaw Says:

    Then I will quietly await your return to the blawgosphere with renewed purpose. But I will still miss your posts.

  4. Karim Renno (@Reenthelawman) Says:

    I gave some thought to the proper and most elegant manner in which to respond to your post Antonin. As you know, I consider your blawg to be a gem in the Canadian legal landscape and your posts to be particularly thought-provoking such that my response needs to properly reflect how much of a loss this will be. I have come up with the following:


    I can only hope you’ll be back to blawging soon.



  5. Brian Tannebaum Says:


  6. Ted Folkman Says:

    I recall that you stepped away from the Trial Warrior blog once before, and I was glad you reconsidered. I hope you’ll do so again–I’ll miss reading your stuff! Don’t let a dictum get you down.

  7. Max Kennerly (@MaxKennerly) Says:

    The inspiring Rick Friedman — truly a trial warrior, a leading light among plaintiff’s lawyers, who just last year stood up in Donziger’s defense against Chevron, knowing full well what the outcome would be — wrote last year about what he suggested other lawyers to think when they lost a case:

    “Close your eyes. All of you, I mean it, close your eyes. Think about a trial that you lost—the most painful loss you can think of. Feel your client sitting next to you. Watch as the jury files in. Scan them to see which one is the foreperson—the one carrying the verdict form. Look at their faces to try to figure out if you won or lost. Watch the foreperson hand the verdict form to the clerk. Watch the judge’s face as he reads the verdict form, trying to figure out what the verdict is. Hear him announce the verdict. What are you feeling? I usually feel sick to my stomach and sweaty all over. Stay with that feeling…

    Now, you have a magic button. You can press that button and change the past. Press that button and you will be transported to the other side of the courtroom. You will be the defense lawyer who just won a very difficult trial. You will feel great. How many want to press that button?”

    I bet I know your answer.

    To paraphrase the line used by philologist to describe Latin, “trial advocacy is not dead; it is immortal.” The first societies had it, as will the last ones.

  8. Jeff Gamso Says:

    Come back, Shane!

    I’m gonna miss you.

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