I can think of no better way to frame what I would like to say in this week’s blog – on our monthly theme of “Clearer and Simpler Court Forms & Processes for SRLs” – than Mr. Justice David Brown’s remarkable end-of-term speech to the Ontario Bar Association last week (2014.OBA.Civil.end.term.paper.june.14)
Justice Brown’s speech is a call to order for those who are going to be the future of the profession to take seriously just how far the courts have wandered from the stated goal of securing “the just, most expeditious and least expensive determination of every civil proceeding on its merits” (Rule 1.04(1) of the Rules of Civil Procedure).
So far in fact that even reminding ourselves of this “fundamental goal” as Justice Brown puts it lands somewhere between downright embarrassing and slightly humorous.
His diagnosis is that the cost of legal services means that a system “designed on the assumption that parties will enjoy legal representation now increasingly witnesses litigants fleeing from lawyers in large numbers and representing themselves.”
Reading his analysis of causes, there is an eerie resonance with the hundreds of conversations I have had over the last two and a half years with those who had fled from lawyers (or just cannot afford them) and are representing themselves. Certainly Mr. Justice Brown understands the system a great deal better than they do, but wait – his points of issue are strikingly similar:
Remind me – what was the point of this legal action in the first place?
Justice Brown drives home the point that the system is less focused on adjudicating the merits of a case, and far more focused on the procedure itself (57 of 74 rules deal with interlocutory matters and only 17 with final determinations). While recognizing (for example a motion to strike or for summary judgment, see last week’s blog) that some interlocutory procedures are important safeguards against abuse process, many of these rules also facilitate process abuse. SRLs would say that this means that the procedures are designed by lawyers, for lawyers, because they are the only ones who can understand and apply these rules effectively.
A related problem is the commitment to treating every matter raised in litigation as equally deserving of judicial attention – so that every motion hearing on every minute issue (service, deposition mechanics, the color of opposing counsel’s socks – oh sorry, not that) is afforded the same time and attention as efforts to adjudicate the merits of the case. Justice Brown says that we need “(a) more rigorous separation of the litigation wheat from the chaff.” SRLs just think that lawyers are manipulating the system to delay their matter and confuse them, and complain that when they bring forward something that they believe to be important to the merits (rightly or wrongly, and usually because they have read about it in a case or on a law website) they are regularly told that they are wasting the court’s time (ironically, often because they are speaking to the merits, when the motion requires them to only address the colour of opposing counsel’s socks).
Can’t we ask a judge to decide this?
A decade ago, legal economist Gillian Hadfield demonstrated that the “vanishing trial” was being replaced by a large increase in the use of motions and other pre-trial procedures (“Where Have All the Trials Gone?” (2004) 1:3 Journal of Empirical Legal Studies 705). While the Rules try to expedite certain matters using special procedures such as case management and mediation, there is no procedure to allow the parties to agree to expedite their matter to trial.
The closest we have come to this in Ontario is the Simplified Rules Procedure, first introduced in 2001. However to describe the lengthy and complex flowcharts required to explain Rule 76 as “simplified” is mildly hilarious (less so if you are representing yourself). Moreover opposition from some parts of the Bar has led to the re-introduction of some of the very procedures – such as discovery – that the Simplified Rules Procedure were originally designed to eliminate.
Justice Brown asks why there cannot be an American Express style “Front of the Line” process where parties to agree to expedite their matter to trial, for example by agreeing to forgo pre-trial motions. SRLs would question whether even if there were such a procedure, legal counsel would be willing to use it especially when they saw a SRL on the other side. Under the present system, would counsel be able to resist the opportunity to “snow” them with motions and drive them either insane, or away?
Motions combat and the “party prosecution” system
Justice Brown observes that the culture of the present system rewards “master tacticians….who “’play the game well’”.
As trials have fallen out of fashion, “motions combat” has taken over. As last week’s blog described, SRLs do not fare well in “motions combat” (https://representingyourselfcanada.com/2014/06/16/no-claim-for-pooping-and-scooping-into-the-neighbours-garbage-but-srls-deserve-to-present-reasonable-claims-and-not-be-halted-by-procedures-they-do-not-understand).
But can SRLs be blamed for aping the type of naked procedural adversarialism they so often observe in counsel? Because ironically, it is often SRLs who are at the receiving end of such criticism. From an advertisement for a CLE in British Columbia sent to me this week : “(M)ost (self-represented litigants) are completely obsessed with their legal ‘problem.’ The fervor with which they pursue their claim (often their life’s sole focus, often misconceived, and often containing vexatious and extreme allegations against your client), and their lack of objectivity, significantly increase the costs of litigation for the defendant…” (Layperson vs. Lawyer: Dealing with Unrepresented Litigants http://www.cle.bc.ca/onlinestore/productdetails.aspx?cid=1039 )
Hmmm…sound familiar? I wonder where those rotten SRLs got those naughty ideas from?
Talking to the riff-raff? A call for public consultation
My favourite part of Justice Brown’s after-dinner talk to the OBA may have had a few choking on their dessert.
“Just to stir the pot a bit more, what if those bodies which debate and make civil rules were to suspend their deliberations for two years and, instead, embark upon a grass-roots consultation process with litigants who have actually used or who are using our civil court system? And make it a real grassroots consultation – like meeting folks up in Timmins in the middle of winter when they have to work their way through the snow to a courthouse…”
Justice Brown does have some proposals for change, and again many of this echoe what we have been hearing from those less schooled in such matters – the users of the system themselves. Next week’s blog will turn to these.
