Is belief in law logical?

Many years ago, I agreed to act for an elder of the Celestial Church of Christ, a religious order based in Nigeria.  A member of his congregation had asked him to be a “character reference” on a bank loan.  It turned out to be a guarantee on a sub-prime mortgage.  To make a long story… Read More

Hryniak v. Mauldin: Which way has the #SCC swung the summary judgment pendulum?

The Ontario civil litigation bar will now be abuzz for a while with the Supreme Court of Canada’s decision in Hryniak v. Mauldin, released yesterday.  There was a clear departure from the Court of Appeal for Ontario’s 2011 decision in the decision in Combined Air Mechanical Services v. Flesch, whose “full appreciation” test has been seen in some… Read More

Moore v. Getahun: A ‘Glendower’ solution to stamp out manipulation of expert opinon

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… Read More

Unbundling as a law practice business model for litigation

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… Read More

Why Civil Litigators Have to Keep Current on Criminal Law

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… Read More

Inside the life of a reserved summary judgment

Some welcome editorial comments this week from Justice D. M. Brown, of the Superior Court of Ontario, in Western Larch Limited v. Di Poce Management Limited, 2012 ONSC 7014. 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… Read More

Beyond First Principles in Arbitration Practice

For many lawyers, barristers and solicitors, and corporate clients, commercial arbitration may seem like a parallel or alternate universe.  Not quite there.  Maybe not quite legal.  Certainly difficult to get past the initial ‘Take me to your leader’ moment with the denizens of the other world.  As a club of senior practitioners, the arbitral practice has… Read More

Reading Insurance Law – Of Emperors and Clothes

We lawyers can sometimes adopt a herd mentality.  A senior lawyer or judge says something.  You go back and read the case.  You may be reluctant to voice your difference.  That’s how we, as a profession, can just get things wrong.  The example here comes from insurance law, but you can apply it to your… Read More

See how the active voice wins you your case

Today, I read a lawyer’s factum. By the third paragraph, I stopped reading it and started to count the sentences written in passive voice. Like the kids in the classroom tallying the number of times the teacher performs a nervous tic, my brain switched off and looked for something else to do.  The writing style… Read More

Unpacking the legalities of the “Three Little Pigs”

Hidden behind The Guardian‘s provocative “Three Little Pigs” ad is a subtext on the role of public opinion on the judicial process. (la version française suit) It starts, of course, where the children’s story ended.  The Big Bad Wolf was boiled alive, but then the layers of the story unwrap into a fractured tale of a… Read More