From Civil Litigation

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) Uncharted territory, albeit well-trodden What is your experience so far with limited scope retainers, otherwise known as “unbundling”?  At the moment, Ontario lawyers appear to be slow adopters of this mode of legal service delivery, at least with that label.  Fingers crossed, no one has…

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 this in the tactics of some litigation counsel.  It is most obvious at trial or during a tribunal hearing.  They will skirt around an issue, question after question, leaving both witness and trier of fact wondering whether the lawyer picked up the right brief that…

‘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 something?”  The phone call in this true story was the lawyer’s reward for having a listed home phone number, a bad practice of many lawyers in smaller communities. If you are a family lawyer and this story “rings a bell,” just think what lies in…

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” information that may jeopardize the coverage and the insurer’s provision of a defence.  The Supreme Court did grant leave to appeal, but the case was settled before Canada’s top court could hear it.  Eleven years later, you’ll hear it here first, folks: Fellowes was wrongly decided.

‘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 of Ontario prior to 2004 were happy, in some respects, to be rid of the arcane language of the old Limitations Act, R.S.O. 1990, c. L.15.  For over a decade, the battlegrounds were staged in the judicial interpretations of “accrued” causes of action, “discoverability” principles, and…

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 responsibility quicksand.  Under subrule 4.01(7) of the Law Society of Upper Canada’s Rules of Professional Conduct, she was obliged to fulfil the undertaking, clearly recorded in the discovery transcript.  If my friend gave an undertaking which she could not fulfil, she had already breached rule…

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 memorable fortnight in the mid-1990’s.  Each day I faced a different motion, every motion in the same case, brought by the same opponent.  Each day, for ten juridical days, I returned to the office to find a new notice of motion returnable the following morning…

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 at home, try to follow the TV news with your back to the set, and see how well you follow what’s going on. The back of the head is what the judge sees, if you examine from the side closer to the jury box.  It…

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 you with a cheque for $5,000.  You will obtain an adjournment of the motion and eventually you will employ your skills as a lawyer and persuade the court there are reasons why the matter needs to proceed to trial.  When you have achieved this victory…

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 and the women’s departures. Seven senior lawyers out of the door in one year, all women, and no one saw a trend!” From Barbara Annis, Same Words, Different Language, 2003, p. 10 (la version française suit) The thoughtfully written first book by my friend and…