James C. Morton, a Toronto litigator, law professor and author of Morton's Musings law blog, on delays in Ontario civil proceedings, from an op-ed in today's Toronto Star:
[T]he real problem leading to delay is the uncertainty and hazard of trial. The costs of going to trial have vastly outpaced inflation. Despite judicial caution, judgments have increased in uncertainty and in amount out of proportion to the judgments of the 1960s. Moreover, trials have become very uncertain. Fifty years ago, principles of law changed slowly; today there is great unpredictability in what a court will do. The result of losing a case is commonly utter ruin and yet predicting the outcome of a case is almost impossible. As a result, litigation, rather than being a process designed to lead to trial, has become an elaborate game of chicken.
Neither side can risk losing a trial. As a result, cases tend to drag on as parties avoid trial. Attempts to settle, normally a good thing, become reasons to delay the actual hearing of the case. Lawyers unused to doing trials become even more risk-averse and look for all options other than going to trial. Thomas Jefferson’s aside, “delay is preferable to error,” is elevated into a principle of law and cases linger.
Read more: Fear of trial delays civil cases
- Garry J. Wise, Toronto
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I found several ways to avoid this "chicken" business. Very shortly after the basic pleadings were filed I would prepare and serve demand for discovery of documents, a notice to admit, reasonably comprehensive interrogatories and, in most cases, an offer to settle. Failure to respond as required under the Rules would result in an appropriate motion. After the opposing parties responses were received it would either be go directly for summary resolution or proceed with discoveries and then summary disposition. This "front end loading" almost always ensured minimal delay, a more predictable outcome and an ultimate cost saving to the client. Narrowing the essential issues in law suits as early as possible contributes to predictability of outcome and real cost savings. It also lets the other side know you're on top of the case and you mean business. Funny the effect that can have.
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