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