 |
| Marcel Strigberger |
We have a new pope. Habemus Papum. And if the Ontario government presses ahead with the major revamp of the Rules of Civil Procedure, we’ll also have new havoc for lawyers and litigants, especially victims of personal injuries.
I am retired from practice, happily. However I am as qualified as anybody else to comment on the proposed change by the Civil Rules Review Committee (CRR), as I am as ignorant about the why and the wherefore for the Draconian changes as anybody else, likely including the CRR.
Here is my take on some of the highlights of the impending rules tsunami.
1 Front end load work for plaintiffs
Plaintiff must assemble entire case, including witness lists and statements before they are entitled to receive production of the juicy information from the defendant. That’s a bit of work. Since about 99-plus per cent of the cases settle out of court often well before the trial, the plaintiff would have to virtually be trial ready while knowing diddley about the defendant’s case. It’s like the Blue Jays arriving for a game in Milwaukee when the game is at Yankee Stadium. (Though the way they have been playing that would not surprise me).
Given the massive investment the lawyer would have to incur getting the case ready for trial most lawyers would be hesitant to incur same especially on a contingency basis, unless they want their business to turn into a non-profit organization. This would take the concept of pro bono to a new dimension — like non habemus a practicum.
No doubt the CRR Committee missed this one.
2 No production of relevant documents
OK, you’ve burnt yourself out getting ready for a trial that likely ain’t going to happen. Now you can get production of the defendant’s relevant documents. Right? Right, you can still get them now. But not when the new rules scorch the system.
You must specifically ask for the documents you are seeking. The onus shifts to the plaintiff to guess what he wants. So in a medical malpractice case where say the physician removes the wrong ear, you might have to craft your request like, “Please produce a copy of Dr Magoo’s eye glass prescription.” Or “Get a letter from the dean of the surgeon’s medical school confirming that there was at least one lesson where the anatomy professor taught the students the difference between right and left” Or “Please produce copy of membership card if the good doctor is a member of the Van Gogh fan club.”
No doubt with time, most lawyers will get good at guessing what documents to ask for if they often have no clue. There may even be the rise of a new expert who can do the guessing. It would not surprise me if to assist in the documentary request stage, the lawyers would visit and retain someone like the Oracle of Belleville. “Need help what documents to ask for? Contract Madam Merlin- Mediator, arbitrator and wizard.
3 No oral examinations for discovery
At present parties can question the opposite side orally face to face, learn about their opponent’s’ case, get a good sense about the credibility of the other party, and most importantly size them up and often settle the case.
I have no clue how this would now play out in jury case. The plaintiff’s lawyer’s opening statement could be challenging. “Members of the jury, the defendant drove his motor vehicle while drunk. He’s here in the courtroom. Not sure but I believe he’s the guy over there wearing that Heineken cap.”
Another benefit of examinations for discovery are the free catering services provided by most official examinators’ offices. For example Network Reporting in the GTA area sets up a super spread of sandwiches, salads, and pasta dishes. Their blueberry tarts are to die for. I invite the CRR Committee to come over and give it a try. They’ll most likely scrap the new rules proposal in a blink- dollars to donuts.
4 Limited examinations -in-chief- nuclear limited
We’ll have trials where only the parties will get to give live evidence. This no doubt makes sense for the CRR as the absence of witnesses generally results in trials being shortened. Bravo. Reminds me of the Marx Brothers movie Duck Soup where Groucho in discussing a battle says something like “Dig the trenches this high our soldiers won’t need pants. Dig them higher and we won’t need soldiers.” Yep.
5 Too many conferences
There are rules for Scheduling Conferences, Trial Management Conferences and Directions Conferences. I’m not sure what a Directions Conference entails. What comes to my mind is the judge saying something like “Leave the courthouse, go north two blocks, turn right on Bay Street and it’s right there. And why don’t you bring me back a box of Timbits.” Or something like that.
Who knows how this all will end up? The current situation isn’t perfect but it ain’t broke either. It is fair to the parties, especially the injured victims, and those of us practising in the trenches. Hopefully the CRR conclave will not inflict this potential punishment on us, and take a hard look at this Pandora’s box, and not send up the white smoke. Amen. But If they do we’ll be in a situation of Habemus meltdownum.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X: @MarcelsHumour.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.