This is a guest post by Thomas Dart, a partner with Barriston Law in Barrie, Ontario.
I have been trying my best in my practice to lower costs to clients by becoming efficient. However, the fact is that one of the major reasons (not the only one of course) for the high cost of litigation is the process imposed by the Rules of Evidence and The Family Law Rules.
As Phil Epstein notes in a recent weekly newsletter, the Rule of Evidence regarding the expert’s report is now extended to the simple medical report. We used to just have the c.v., the report and a Notice under The Evidence Act and we could file the report. We did not have to call the doctor unless the other side wanted to cross examine. Now the Divisional Court in a recent ruling says that any expert, including the health care professional must complete the statement required by The Family Law Rules regarding neutrality, must testify and must prepare their report in accordance that rule. More added cost to the client. As Phil says in his comment, this needs to change.
The Family Law Rules themselves– with the requirement of 3 conferences before trial, attendance at a trial scheduling court, and then an “exit pretrial” for a fourth conference (at least in our jurisdiction); updating the financial statement for a step in the case if it is more than 30 days old, and on and on, add cost to the client – even if they are representing themselves as they have to get out of work for many days just to get through the system. In our jurisdiction we also have to fill out the Trial Management Conference endorsement for the judge – which is almost a mirror image of the Trial Management Conference brief – two documents – added cost to the client.
Judges want facta for all motions – The result: added cost to the client. If we are going to decide cases based on facta, then why don’t we just do away with affidavits and motions and just use facta to make the decision?
The clients in the current system feel as if nothing is getting done – a constant question I am sure all lawyers hear – what have I got for what I have paid you? Their expectation when they go to a case conference is that something will happen. They want their substantive issues addressed – that does not happen at most conferences – where we all spend the majority of our time.
I appreciate that there are sound reasons for The Family Law Rules – but does anyone analyze the cost impact to the client when rule changes are imposed? Do we such a good reason for a rule that it is worth imposing this additional cost on the client even if the client is unrepresented?
In the private litigation system, by way of contrast, one or perhaps two mediations usually result in settlement. If not, then straight to arbitration – the case can be over in a matter of months rather than years – way less lawyer fees for the client – the downside is they have to pay for the private dispute resolution process. Fortunately, the vast majority of private resolution proceedings settle at the mediation phase usually after one day of mediation. The Mediation Briefs and Arbitration Statements are tailor made to the case and don’t have to follow any specific form.
What I suggest needs to happen at the court process level – is the transposition of the “med-arb process” onto the court process. One judge – one case – all the way through, including motions and trials. Then you have efficiency as the process will be designed around the case instead of now where the case is designed around the process. We can build in an option to provide that the mediator and the arbitrator can be separate if the parties so choose – but give them the option to have the same judge to save them costs. In other words, why can’t we transpose what works in the private system to the public system? By the way, we had this system in Simcoe County for about 4 years – 1995 to 1999 (nobody needed private resolution services up here during that time frame)
Somehow the litigation process has to be client service oriented – not the other way round as it seems to be now. I believe that lawyers are client service oriented (they have to be for survival) – way more than the system is. It’s time we started pushing back somewhat.
I am tired of hearing that lawyers fees’ are the main reason why people are having to be self-represented. Yes it is true that legal services cost money (so does buying a car these days – way more than it used to). People sometimes make a value choice when they choose to represent themselves as well. What does this tell us?
We have to recognize that part of the problem is systemic and then hopefully we can devise a comprehensive approach to the system that does not add cost for the litigant. Seemingly, as time goes on, procedures for dispute resolution within the justice system become more bureaucratically complex. As Phil notes, this has to stop. So let’s focus on legal fees for sure and see how we can get them down, and Julie (Macfarlane’s) ideas are excellent in that regard, but let’s also devise a system that promotes that too.
Thanks for reading!!
