Unbundling the civil litigation retainer

“A significant proportion of middle-income Ontarians can afford to pay for some legal services.  Developing innovative programs to harness this market, whether through unbundling, legal expense insurance, or other forms of subsidized legal services, would represent an important step forward.” — Report of the Ontario Civil legal Needs Project, 2010, p. 56 (la version française suit)… Read More

How to lead a witness into a trap

Classic military theory had soldiers hiding in tall grass or in pits or trenches. Ambush, relying entirely on the element of surprise, was always risky because no one could predict what would happen after the surprise wore off. (la version française suit) To confuse the adversary, you will need to be confusing You still see… Read More

‘Tis the Season to be Injunctive

(la version française suit) When 10 minutes to go, is late It was 6:50 p.m., and all through the house, not a creature was stirring, not even a —— Drrrring!  “He’s not here yet.  He’s supposed to have my kids here by 7,” said the voice, to the lawyer.  “Can’t you phone the judge or… Read More

Solving the conundrum of the Canadian tripartite retainer

(le sommaire français suit) Discussion of the 2000 Court of Appeal for Ontario decision, Fellowes McNeil v. Kansa, in my recent article, “No Unbundling of Negligence,” has tapped into a continuing discussion of the precise ethical obligations of lawyers and law firms retained by liability insurers to defend parties in lawsuits, and who “stumble upon”… Read More

‘Appropriate Means’ ~ Enhancement of Discoverability in Ontario Limitations Law

Limitations Act, 2002, came into force, do parties and their lawyers avail themselves of the phrase “appropriate means” in s. 5, to toll the operation limitation periods?  The time has come for all lawyers, junior and senior, to be aware of these words as an enhancement of the discoverability principle. Lawyers called to the Bar… Read More

Rule 30.1 ~ The Quicksand between Rules 30 and 31

Recently, my opposing counsel in a product liability matter cited the “Deemed Undertaking Rule” as grounds for the manufacturer not to comply with a discovery undertaking to produce information from prior incidents linked to the same device. (la version française suit) If my opponent were right, she would have landed in a patch of professional… Read More

The Litigation Pendulum – One explanation for lots of motions

In its place now gleams the portico of the Toronto opera house.  The original home of the Commercial List of the Ontario Court (General Division) was a courtroom on the second floor of a near-condemned “145 Queen Street West.” (la version française suit) As junior lawyer, this was my home away from home for one… Read More

Judges and juries read lips – how to make them do it

We hear with our eyes, as well as our ears.  If you have any doubt about this, try having a conversation with the back of someone’s head. (la version française suit) That’s right, do it now.  If you’re at the office, play it out with a colleague or a member of your staff.  If you’re… Read More

No ‘unbundling’ of negligence

The hitherto unrepresented litigant has made an appointment to see you. (la version française suit) Under his arm, he clutches a big stack of papers, out of which he hands you a motion record for summary judgment delivered at his post office box.  The hearing is scheduled for the day after tomorrow, and he presents… Read More

Talking law with the men in the office

“The partners believed the women’s excuses. … Everyone took the women’s words at face value. ‘Leaving for family reasons’ had a familiar ring to it. As some of the partners told me themselves, ‘It goes with being a woman.’ It was predictable. None of them made the connection between the atmosphere they described to me… Read More