More often than not, referral of a legal problem to lawmakers, or to rules committees for broad consultation, is manifestly preferable to making up procedural law on the fly. In the Ontario Superior Court decision released this week in Moore v. Getahun, 2014 ONSC 237 (CanLII), the trial judge issued an injunction against the practice of litigation counsel reviewing draft reports with expert witnesses.
The relevant paragraphs from the ruling appear at paragraphs 50-52:
 For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.
 If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
 I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.
Despite the splash that ‘unbundling’ made as a model for legal service delivery, it has largely been the domain of family law and small claims litigation. As a business model, unbundling presents considerable challenges for the law practice. My recent paper, Drawing Clear Boundaries: Unbundling Litigation Without Letting It All Hang Out, provides some do’s and don’ts of making limited-scope retainers work in a litigation practice.
In the privacy of mediation rooms, I often listen to assertions made by counsel about certain facts, such as soft-tissue injuries suffered in a car crash, and then I ask: How are you going to prove that?
I may as well have asked a question about Heidegger’s thoughts on the revelation of reality. The lack, most of the time, of a satisfactory answer to my question comes from the apocryphal nature of the rules of civil evidence in Canada, and from the dearth of actual trial experience among litigators called to the bar in the last 15 years.
(la version française suit)
So much of the practice of civil litigation is now not about evidence but information. An entire industry called E-Discovery has grown in large firms which has little to do with litigation as it does about searching for dots in complicated constellations of (hoped for) exceptions to the hearsay rule. Parties in large commercial cases are tempted to settle after shuddering at the size of the bill for a round of E-Discovery. Very few of the lawyers involved in such matters actually have much sense of what the case is about. The holy grail is server full of coded productions, whether or not any of it might end up being used by the court as proof of fact or legal theory. Continue reading
Some welcome editorial comments this week from Justice D. M. Brown, of the Superior Court of Ontario, in
Starting at para. 269 of the decision, the judge candidly describes the disproportionate time required to make rulings on complex summary judgment motions. In a nutshell, he takes aim at one area of judicial allocation, judgment writing time. He says the internal scheduling protocols should be updated to reflect the time needed to deal with summary judgments, which may take up little hearing time but deal with issues as complex as many commercial trials.
In the concluding paragraph, Justice Brown writes, “
If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”
In a paper delivered at a September 12, 2012, meeting at the Ontario Bar Association, Justice Brown had disagreed with comments this writer made to the Canadian Lawyer in a August, 2012, article about the need to allocate judicial resources to meet higher demand for summary judgment motions. In fairness, Justice Brown did not, as I did, propose a separate motion court for summary judgments, separate from procedural motions. But his words are timely and represent an awakening to the need for court modernization.
Judge Brown deserves our praise for speaking candidly about the role of judicial resource administration in problems we face in the justice system. We in the practicing Bar can only encourage more transparency from the judiciary. Judges blaming lawyers will never replace cleaning out the stables. This author, in any event, will offer thanks to him for encouraging the debate. This time, you met me half way.